Kania, C.J.:—

1. These are two appeals from two judgments of the High Court at Allahabad. The relevant and material facts and documents have been fully set out in the judgments prepared by Mr. Justice Mahajan and Mr. Justice Mukherjea. I do not therefore think it necessary to set them out again.

2. The litigation is in respect of the Anapur estate in the United Provinces. It is common ground that Harshankar Prasad and Gaurishankar Prasad became owners of this estate by survivorship, as members of a coparcenery. At that time Graurishankar was a minor. Although at one time it was suggested that Gaurishankar was born a lunatic, both the lower courts have rejected that suggestion and have come to the conclusion that Gaurishankar became insane as a result of a severe attack of small-pox when he was about 16 years old. Thereupon Gaurishankar was adjudged a lunatic under the Lunacy Act and guardians of his person and property were appointed. Thereafter he married Jodha Kunwar in about 1875 and died in 1902. At that time Harshankar and his adopted son Gopal Saran Singh were alive. Harshankar died in June 1903 and Gopal Saran Singh a few months later. It is undisputed that the separate estate, if any, of Gaurishankar passed on his death to Jodha Kunwar. It is common ground that in respect of Gaurishankar's estate after the death of Jodha Kunwar, defendants No. 1 and 2 are the nearest reversionary heirs. It is also common ground that in respect of the coparcenery property, if any, of the joint family, which existed at the death of Gaurishankar and which Harshankar obtained by survivorship, the plaintiffs are the nearer heirs.

3. The main question in the appeal therefore is whether, when Gaurishankar died he owned the properties in dispute as a separate member, or that the said properties or any parts thereof were joint family properties and Harshankar became owner thereof by survivorship. To enable one to draw the correct conclusion from the facts and documents on record it is necessary to bear in mind some of the fundamental principles of Hindu law in connection with a joint Hindu family governed by the Mitakshara and its coparcenery property. Every Hindu family is presumed to be joint. The essence of a coparcenery under the Mitakshara law is unity of ownership. The ownership of coparcenery property is in the whole body of coparceners. According to the true notion of an undivided family, governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property that he (that particular member) has a definite share, e.g., one-third or one-fourth, in it. It is beyond dispute that a son acquires interest in the joint family estate by birth. It is also well recognised that every member of a joint family has an absolute right to disrupt the status of jointness and thereafter claim a partition of the property according to his share. If a member declares his intention to separate, i.e., to disrupt the joint family status, he can do so by his own unequivocal declaration of such intention. He does not require the consent of any other member. In Appovier v. Rama Subba Aiyan¹, the Judicial Committee of the Privy Council at page 89 observed as follows:—

“Certain principles or alleged rules of law have been strongly contended for by the appellants. One of them is that if there be a deed of division between the members of an undivided family, which speaks of a division having been agreed upon, to be thereafter made, of the property of that family, that deed is ineffectual to convert the undivided property into divided property until it has been completed by an actual partition by metes and bounds. Their Lordships do not find that any such doctrine has been established and the argument appears to their Lordships to proceed upon error in confounding the division of title with the division of the subject to which the title is applied. According to the true notion of an undivided family in Hindu law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property that he (that particular member) has a certain definite share. No individual member of an undivided family could go to the place of the receipt of rent and claim to take from the collector or receiver of the rents a certain definite share… …………But when the members of an undivided family agree among themselves with regard to a particular property that it shall thenceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim to receive and enjoy in severalty, although the property itself has not been actually severed and divided….

4. It is necessary to bear in mind the twofold application of the word ‘division’. There may be a division of right, and there may be a division of property; and thus, after the execution of this instrument, there was a division of right in the whole property although in some portions that division of right was not intended to be followed up by an actual partition by metes and bounds, that being postponed till some future time when it would be convenient to make that partition. Then, if there be a conversion of the joint tenancy of an undivided family into a tenancy-in-common of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement, and that is a separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time be claimed by virtue of the separate right”.

5. In Balkishan Das v. Ram Narain Sahu, the Privy Council had occasion again to consider what declarations or acts might bring about a disruption of the coparceners' status. In dealing with the document in that case the Subordinate Judge held that the document merely defined and fixed the shares of the members which each would get in case of actual partition and separation and that there was no separation between R. and T. and accordingly he passed a decree rejecting the contention that there was a severance. The High Court, in dealing with this view of the Subordinate Judge, observed as follows:—

“We may however state that the Subordinate Judge is not right when he says that ‘the ikrarnama merely defined and fixed the shares of the members which each would get in case of actual partition and separation, for it recites that under this deed each individual has the power to live as a member of the joint family as before, or separate his own business’. This view as expressed upon the terms of the ikrarnama itself, is not correct; for whether it was optional with the parties to continue to live together as members of a joint family, or separate themselves in business, their shares in the family estate having been defined, that is to say, separate shares having been allotted to each of them, it was in their power to effect a partition by metes and bounds, if they so pleased. The question is not whether there was a separation by metes and bounds, but a separation in estate and interest; for that would have the same legal effect, so far as altering the status of the family was concerned, as a partition by metes and bounds”.

6.The Privy Council judgment proceeds to state:—

“Their Lordships entirely agree in the last quoted passage from the judgment of the High Court and they think it expresses accurately the effect of the decision in Appovier v. Rama Subba Aiyan.”

7. These principles cannot be disputed. Their application to the facts in these appeals would have presented no difficulty but for the insanity of Gaurishankar when he was about 16 years old. It was contended for the appellants that that factor completely altered the situation and there could be no severance of status or partition between Harshankar and Gaurishankar. The argument was that Gaurishankar could have no volition to separate. In law he was not entitled to a share on partition and therefore the estate which remained at his death, must pass by survivorship to Harshankar. As regards Harshankar, it was contended that he cannot, on his side, make a declaration to disrupt the joint family status, because that will result in his taking up the whole of the family property, as Gaurishankar would have no share because of his insanity at the time of such declaration by Harshankar. It may be noted that in Allahabad till Moolchand v. Chahta Devi, it appears to have been thought that the disqualification of insanity was operative only in the case of a congenital lunatic. It did not disqualify a person who had supervening insanity, in any way.

8.In respect of families governed by the Mitakshara law, the effect of insanity of a person on his right to inheritance may be traced to Vijnaneswara's statement of law in Mitakshara in Chapter II, Section 10, Placita 1 to 11. In placitum 1 Vijnaneswara quotes the following text of Yajnavalkya as an exception to the rule of succession “of the son, the widow and other heirs”:—

“An impotent person, or outcaste and his sons, one lame, a mad man, an idiot, a blind man, and person afflicted with an incurable disease, and others (similarly disqualified), must be maintained, excluding them, however, from participation”.

9. In placitum 2 “an idiot” is defined as

“a person deficient in understanding, meaning one incapable of discriminating good from bad”.

10. In placitum 3 we find this statement:

“Manu likewise ordains, ‘Impotent persons and outcastes are excluded from a share of the heritage; and so are persons born blind and deaf as well as mad men, idiots, the dumb, and those who have lost a sense”.

11. Placitum 5 reads as follows:—

“Those persons 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. For Manu says, ‘But it is fit that a wise man should give all of them food and raiment without stint to the best of his power; for he, who gives it not, shall be deemed an outcaste’. ‘Without stint’ signifies ‘for life’.

12. The words “those persons” with which this placitum commences refer to the persons described in placitum 1 as being excluded from participation.

13. Placitum 6 runs thus:—

“That shall debar them of their share if disqualifications arose before the division of the property, but one already separated from his co-heirs is not deprived of his allotment”.

14. Placitum 7 makes it clear that when the disqualification is removed the right of participation follows. It is in these words:—

“If the defect be removed by medicaments or other means at a period subsequent to partition, the right of participation takes effect, on the same principle on which ‘when the sons have been separated, one, who is afterwards born of a woman equal in class, shares the distribution’ is based.”

15. The placita which have bearing on the rights of the sons of disqualified heirs are placita 9, 10 and 11. They read as follows:

“Placitum 9: “The disinherision of the persons above described seeming to imply disinherision of their sons, the author adds: ‘But their sons, whether legitimate, or the offspring of the wife by a kinsman, are entitled to allotments, if free from similar defects’.”

Placitum 10: “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, etc.”.

Placitum 11: “Of these the impotent man may have issue of the wife; the rest may have legitimate progeny likewise. The specific mention of ‘legitimate’ issue and ‘offspring of the wife’ is intended to forbid the recognition of other sons”.

16. The cumulative effect of all these provisions has to be considered when the question of the rights of a lunatic in joint family property has to be decided.

17. In Muthusami Gurukkal v. Meenammal, Seshagiri Ayyar, J. observed that if the disqualification was not congenital the old law-givers, by providing for maintenance, did not intend to deprive the heir of his inheritance but only to provide for his share's management during incapacity. The above-quoted texts of Mitakshara have been examined in detail in the Madras High Court. In Venkateswara Pattar v. K. Mankayamma, Mr. Justice Yaradachariar expressed the view that there could be a coparcenery even if the family consists of a sane father and an insane son only and that the sane member can disrupt the joint status. According to him in such a case, it could not be said that the insane was not in any sense a coparcener. There is a dormant coparcenership in the disqualified coparcener and there is no reason why a severance of status as would put an end to the right of succession by survivorship should then be denied. This was based on the well established principle that an interest once vested cannot be divested without a law to justify such result. In Amirthammal v. Vallimayil Ammal a Pull Bench of thatCourt after a review of the texts held that even a congenital idiot has the status of a coparcener under the Hindu law, notwithstanding that he is excluded from the enjoyment of his share. He is described as a co-sharer but not a co-enjoyer. The affliction prevents him from enjoying his right while the affliction lasts.

18. A coparcener gets his right in the coparcenery property by birth and there appears nothing in the texts quoted above irrevocably to extinguish that right on a supervening insanity. On the other hand, the texts show that although such a person may not have a right to a share or claim a partition when another coparcener disrupts the joint family status, such right is given to him on the malady being cured. It is further clear that the sons of such a disqualified person are not excluded from taking a share in the coparcenery property. The text, providing for the reopening of the partition on the insane being cured, clearly shows that his rights remain in abeyance and are not irrevocably lost in the case of supervening insanity.

19. Applying these principles to the facts here it is clear that Gaurishankar acquired a right in the property by his birth. While Gaurishankar could not have himself claimed a right to partition after his supervening insanity, it is fallacious to contend that his right to a share was dead, if he was insane at the time of severance of the status made by another coparcener. While he himself may not have the volition to declare a separation, I see no reason to hold that his insanity takes away the right of another sane member of the coparcenery to declare an intention to disrupt the family status. The argument that Harshankar could not be given in this case a right to disrupt the joint family status because that would have resulted in Harshankar acquiring the whole property, is unsound. It cannot be disputed that if there are two sane brothers and one insane brother, it is open to one of the sane brothers to declare his intention to sever the status, with the result that the two brothers
c an partition the property for the time being among themselves. If such right exists in favour of two sane brothers, there appears no reason why it cannot exist when the coparcenery consists of only a sane and an insane person. The question whether there should be a declaration to the knowledge of the other coparcener, does not present difficulty in this case. It is true that a mere intention without a declaration either by word of mouth or action will not cause a disruption. But in the present case, as guardians of the person and property of Gaurishankar were appointed, there appears no reason to hold that such guardians were not competent to receive a notice intended to be served on the lunatic.

20. Having regard to the judicial decisions, it is not disputed that there could be a coparcenery under Mitak-shara law with a lunatic member. It cannot be disputed therefore that in the present case there was a coparcenery between Harshankar and Gaurishankar. The only question therefore is, if Harshankar desired to disrupt the status was it impossible for him to do so, because Gaurishankar was insane In the case of a coparcenery constituted by one sane and another insane member, the doctrine of survivorship is equally applicable on the death of the sane member in favour of the insane and vice versa. If the sane member therefore desires to safeguard the interests of his wife and daughter, I see no reason why he should be held incapable of disrupting the family status and prevent the insane man from acquiring all the property by survivorship. In other words, there seems no justification for holding that because of the insanity of the other member the sane member is under a disability and cannot create the disruption of the joint status. His rights may be to get the whole property and provide maintenance for the insane member. That involves the risk of the insane member becoming sane after the death of the sane coparcener, followed by a revision of the proprietory rights of the widow of the sane member. If he does nothing, he may lose everything and leave his family to the mercy of the insane member to whom all the property will pass by survivorship. To avoid a suggestion of being unfair or to provide against a doubtful situation he may bring a suit to divide the property and I see nothing to prevent him from conceding at that stage a share to the insane member, who has not irrevocably lost his right to a share. I see no difficulty in holding that he can achieve the same result without a suit by giving a share to the insane member, thus preventing any disturbance of the arrangement which he may have made in respect of his own share, after his death. The texts, to my mind, do not stand in the way of a sane coparcener exercising his right to create a severance of the joint family status, when the coparcenery consists of a sane member and one who is not a congenital lunatic, but is suffering from supervening insanity after his birth.

21. Proceeding therefore on the footing that Harshankar had a right to bring about a disruption of the coparcenery, without the consent of the other side, the question is whether he had done so in this case. Again, the declaration of his intention to sever need not necessarily be by word of mouth. It can equally be inferred from his conduct. In my opinion, a clear declaration of the share of both members, followed by a division of all the properties, is sufficient to establish in this case the fact of the disruption of the family completely. In the judgments of Mr. Justice Mahajan and Mr. Justice Mukherjea, the various facts and documents showing how the properties were dealt with have been noticed in detail. They show that Harshankar was a party to Gaurishankar's representative claiming and obtaining possession of a defined half share in several lands belonging to the coparcenery. It is clear from the evidence that the management and income of such lands were kept by Gaurishankar's representatives to the exclusion of Harshankar. Harshankar had a half share in several properties and had made declarations that he was in separate and exclusive management and enjoyment of the same. The wajib-ul-arzes executed on his behalf prove this beyond question. The partition effected between the Collector, as representing Harshankar, and the Court of Wards, as representing Gaurishankar, under which Harshankar acquired full title to several villages and definite shares in certain others, was accepted as correct by Harshankar and ended in his selling ultimately 79 villages, to which he thus acquired title, to Gaurishankar. In my opinion, the cumulative effect of all these is that Harshankar unequivocally disclosed his intention to disrupt the family status and carried the same into operation by dividing from time to time all the parcels of the family property. In my opinion, therefore, in the present case there is clear evidence to show that Gaurishankar was completely separate from Harshankar in food, worship and estate when he died in 1902.

22. It was suggested on behalf of the appellants that all these acts were only a scheme on the part of Harshankar to keep the properties in the family or save the same from his creditors. This case, which was set out in the plaint, was given up in the High Court and on examination of the materials on record the faint attempt to resuscitate the same completely failed.

23. There remains the question whether there was a valid marriage of Gaurishankar to Jodha Kunwar. On this point the concurrent finding of the two lower courts is that Gaurishankar had sufficient intelligence to contract a marriage with Jodha Kunwar. Nothing is shown to justify this Court's interference with that concurrent finding. Jodha Kunwar was therefore the lawfully wedded wife of Gaurishankar at the time of Gaurishankar's death. The estate which was vested in Gaurishankar at the time of his death was not joint family estate, and therefore devolved on Jodha Kunwar by inheritance. It is admitted that the respondents are the nearer reversionary heirs of Gaurishankar's estate.

24. Having regard to the conclusion at which I have arrived it is not necessary to go into the question of limitation, res judicata and the bar to the suit because of s. 233(k) of the U.P. Land Revenue Act. The appeals therefore fail and are dismissed with costs.

25. Fazl Ali, J.:—In my opinion, these appeals fail on short ground that the plaintiff' suit is barred byb limitation. This would be clear from certain uncontroverted facts which I shall set out as briefly as possible.

26. The father of Harshankar and Gaurishankar, the two persons with whom we are concerned in these appeals, died in 1846, and their uncle, Ram Parsan Singh, who was the managing member of the family after the death of their father, died in 1854. On Earn Parsan Singh's death, the names of both Harshankar, who by that time had attained majority, and Gaurishankar, who was still a minor, were mutated in regard to the family properties. There was some dispute in the trial court as to whether Gaurishankar was congenitally insane or he became insane after the death of his father and uncle, but it may now be taken to be established that he became insane in 1859.

27. It appears that Harshankar fell into evil ways and began to waste family properties; and in 1872, he went so far as to assert, either of his own volition or, as the High Court has suggested, to satisfy certain persons with whom he had negotiated the sale of one of the family properties, that his brother was congenitally insane, blind, deaf and dumb, and that he (Harshankar) had exclusive possession of the property to be sold, his brother having no right to it. Shortly after this, on the 31st July, 1874, Naraini Kuar, widow of Ram Parsan Singh, applied to the District Judge praying that she may be appointed guardian of the person of Gaurishankar, who was undoubtedly insane at that time, and her nephew, Dalthamman Singh, be appointed guardian or manager of Gaurishankar's property. This application was granted.

28. The appointment of Dalthamman Singh as manager is a crucial event bearing on the question of limitation, because we find that soon after his appointment, he began to deal with the eight annas share of the family property on the footing that it was the separate property of Gaurishankar without any resistance or objection on the part of Harshankar. He took and gave leases of lands, granted separate receipts in respect of Gaurishankar's share and deposited Government revenue separately. Between 1876 and 1879, Dalthamman Singh instituted a number of suits on behalf of Gaurishankar, against Harshankar and some of his creditors and transferees, to recover possession of Gaurishankar's share in a number of properties which had been alienated by Harshankar, and some of these suits were tried along with suits instituted by persons to whom Harshankar had transferred some properties, to establish their title to those properties in their entirety on the ground that Gaurishankar had no share in them on account of his congenital lunacy. In all these suits, the case of the creditors was that Gaurishankar was congenitally insane and also suffered from certain other disabilities and on that account he was deprived of his right of inheritance and Harshankar was therefore the owner of the whole property. The transferees and creditors however failed in all their suits and the suits instituted by Dalthamman Singh were decreed. In 1879, Harshankar's share alone in a number of villages was placed under the management of the Collector under s. 326 of the Code of Civil Procedure, and no one suggested at that time that Harshankar was the owner of the entire family property and not a share only. In 1881, the estate of Gaurishankar was placed by the District Judge under the Court of Wards and after that, the respective shares of the two brothers were managed as two separate estates, one by the Collector and the other by the Court of Wards. A true picture of how the estate was being dealt with is presented in a number of wajib-ul-arzes relating to different villages which are on the record. It will be instructive to reproduce the entries in one of them—Ex. A-1/8, dated the 24th September, 1884, which was signed on behalf of Harshankar by one of his old and trusted servants, named Rudra Prasad. The entry in question is to the following effect:—

“As regards the mode of collection, we are co-sharers of 8 annas each. We Babu Harshankar Prasad Singh and Babu Gaurishankar Prasad Singh insane make separate collections from tenants in proportion to (their holdings), in respect of our 8 anna share each under the management of the Collector of Ghazipur—and separately deposit the revenue—and obtain separate receipts of revenue in respect of the two shares Separate collections are made in respect of our respective shares. After payment of Government revenue, we take out separate profits and appropriate the same. In this ‘mahal’, we, the proprietors, separately take the produce to the extent of our respective eight anna share from trees, bamboo clumps, fishes from river, lake, tank, pond…. Of the co-sharers whoever wants to mortgage make conditional and absolute sale of their share, he can make transfer to another co-sharer on the same price offered by another man”.

29. Similar entries were also found in the wajib-ul-arzes prepared when Dalthamman Singh was managing the properties.

30. Between 1882 and 1886 1891 and 1892, a large number of villages belonging to the two brothers were partitioned under the Land Revenue Act, with the result that each brother had now a separate mahal bearing separate revenue. I will refer here to only one of the applications for partition, (the other applications being in similar terms) which purports to have been made by Harshankar on the 16th June, 1882. This application stated among other things that “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 private partition. Owing to the jointness of the land, ‘sair’ items, and the groves, etc., however, there arise difficulties in the management thereof. Hence a perfect partition is sought”. The entry concludes with the specification of the shares of the two brothers, it being stated that the share of Harshankar was 8 annas and the share of Gaurishankar was also 8 annas.

31. In 1891, a part of Harshankar's estate was purchased at auction sale by the Court of Wards on behalf of Gaurishankar Prasad, and in 1897, by which time Harshankar's estate had been released by the Court of Wards, Harshankar and Gopal Saran Singh, who had been adopted by the former in 1889 as his son, executed a sale deed in respect of 79 villages in favour of Gaurishankar who was represented in the transaction by the Court of Wards. The consideration for this document was a cash sum of over two lakhs of rupees and an annuity of Rs. 4,180 which was to be paid to Harshankar during his lifetime and thereafter to his widow and Gopal Saran Singh and ultimately to the survivor of them. This is undoubtedly a document of great importance, because it represents a dealing between Harshankar and Gopal Saran Singh on the one hand and Gaurishankar on the other, and because the properties sold under the deed included a number of villages which had gone to Harshankar by revenue partition. In view of this transaction, neither Harshankar nor Gopal Saran Singh could be heard to say that they were not bound by the partition, and, as we have seen, the whole basis of this partition was that Gaurishankar was the owner of an eight annas share and was in possession thereof.

32. In 1902, Gaurishankar died, and though the Court of Wards continued its management under s. 42 of the Court of Wards Act, his widow, Jodha Kuar, was described by the Court of Wards as the person who had succeeded him with a life interest and was treated as the owner of the property. Harshankar died in June, 1903, and Gopal Saran died a few months later but neither of them ever put forward or asserted during their lifetime any claim to the property in the possession of Jodha Kuar. On the 8th October, 1920, the Court of Wards released the estate in favour of Jodha Kuar and in 1923, she executed the following five documents:—

1. A tamliknama in favour of defendants Nos. 1, 2 and 5.

2. A waqfnama in favour of defendant No. 5.

3. A deed of gift in favour of the plaintiffs' mother (Kishori Kunwar).

4. A deed of transfer in favour of Shiam Dulari Kunwar (widow of Gopal Saran Singh).

5. A deed of gift in favour of her two nephews, defendants Nos. 3 and 4.

33. Both Shiam Dulari Kunwar and the plaintiffs' mother accepted the deeds in their favour and there was never any assertion by either of them that the property which was dealt with by Jodha Kuar did not belong to Gaurishankar or her.

34. The facts already narrated clearly show that the guardian of Gaurishankar had taken possession of eight annas share in the family property as the separate property of Gaurishankar, and both he and the Court of Wards were dealing with it as his exclusive property, from 1874 up to the death of Harshankar in 1903, to the knowledge of Harshankar; and that at no time during this period, Harshankar put forward any claim asserting that the entire property belonged to him and Gaurishankar had no share in it. The point which has been most strenuously urged in the appeals before us is that Gaurishankar by reason of his disability could not claim a share in the family property. This argument however has no bearing on the question of limitation which clearly arises on the facts stated above.

35. In order to overcome the bar of limitation, the plaintiffs tried to make out a case that Harshankar realizing that the family property was in jeopardy, had devised a scheme which consisted in setting up Gaurishankar as the person entitled to a share in the property and he carried out the scheme by getting Dalthamman Singh appointed as the guardian of Gaurishankar in the lunacy proceeding and by allowing the Court of Wards to manage the property on behalf of Gaurishankar. According to the plaintiffs, Harshankar continued as the exclusive owner of the entire ancestral family property and the entries in the revenue papers and the transactions which took place in the name of Gaurishankar were all farzi. It appears that this part of the case was not pressed by Mr. Das, the learned counsel for the plaintiffs in the High Court, who conceded that Harshankar had devised no scheme as alleged in the plaint for saving the property for his own benefit. Another counsel for the plaintiffs who followed him, however, did not accept the concession made by Mr. Das and tried to argue that there was in fact a scheme in the sense that the various applications and suits on which the defendants relied, were inspired by Harshankar. The High Court has rejected this case of the plaintiffs and, in my opinion, has rightly done so. The whole case of the plaintiffs on the point in question rests on merely conjectural grounds and there is hardly any direct or cogent evidence to support it.

36. Therefore proceeding, as we must, on the assumption that the apparent state of things was the real state of things, there can be no doubt that at the time when Gaurishankar died, he was the full owner of the property which had remained in his possession from 1874 onwards and that whatever interest Harshankar had in that property, had ceased to exist by reason of his failure to recover the property from Gaurishankar, within the period of limitation prescribed by law. One of the questions which was debated in the courts below as will as in this court was as to the proper article of the Limitation Act applicable to the facts of this case. In my judgment, article 144 is the proper article to be applied, and article 127 has no application. Article 127 presupposes the existence of a joint family and joint family property and can be invoked only when the suit is brought to enforce a right to a share therein by a person excluded from such property. In the present case, whatever property was in the possession of Gaurishankar was being treated as separate property for a long course of years, and Harshankar had acquiesced throughout in such treatment. The cumulative effect of the facts established in the case is to negative the existence of the joint family, and, in my opinion, there was in law as well as in fact a severance of status between the two brothers. Therefore article 127 cannot be applied. Even if we were to assume that the case falls under that article, the plaintiffs' suit could not escape the law of limitation, as there was undoubtedly a complete exclusion of Harshankar to his knowledge from the property which was in the possession of Gaurishankar since 1874, with the result that his title in the property had ceased long before his death and before he adopted Gopal Saran. In the course of the arguments, we were referred to certain facts which were relied upon by the plaintiffs as showing that Harshankar did participate in the enjoyment of the property. It appears that Harshankar was getting a small allowance of Rs. 50 from his brother's estate and this allowance was subsequently raised to Rs. 100 in view of his dire poverty. The receipt of this paltry sum however can have no significance, when we remember that the estate which was in the possession of Gauri Shankar yielded an annual profit of Rs. 20,000 and the allowance of Jodha Kuar varied from Rs. 700 to Rs. 2,000 a month. To give a paltry allowance to an indigent relation was obviously an act of kindness and charity on the part of those who were in charge of the estate and cannot be seriously treated as evidence of joint ownership. It further appears that Jodha Kuar being always generously inclined towards Harshankar's branch, which was placed in less happy circumstances, had spent substantial sums on Gopal Saran's sradh and Shiam Dulari's marriage, but, while incurring these expenses, she always purported to act as the full owner of the property in her possession. It seems to me therefore that even under article 127 the suit is barred, but, as I have already stated, the correct view is that article 144 is applicable, and it is difficult to conceive of stronger facts than those presented in this case for the application of that article.

37. One of the questions which was seriously debated before us was whether in law there could be a severance of joint family status where the family consisted of two persons, one of whom was insane. In my judgment, the answer to this question must be in the affirmative. It is one of the privileges of a member of a joint family to cut himself off from the family at his option. He can do so by an unequivocal and unambiguous expression of his intention to separate and enjoy his share in severalty or by such conduct as might conclusively prove his intention to separate and put an end to his joint status. The mere fact that there is an insane member in the family cannot take away that right and if the right can be exercised by a member of a family consisting of more than two coparceners one of whom is insane, it can also be exercised where there are two coparceners only and one of them is insane. There are no texts of Hindu law which go so far as to say that severance of status is not possible in a case where one of the coparceners suffers from a disability, and I am in complete agreement with the opinion expressed in Venkateswara v. Mankayamma, by Varadachariar, J. that such a separation is possible under the Hindu law. There can be no doubt that Harshankar could have severed himself, if he so chose, from his brother, and that he did so is clearly shown by the facts already adverted to.

38. Another question which was debated before us was whether Gaurishankar acquired any right to any part of the joint family property otherwise than by the operation of the law of limitation. This question becomes academic in the view taken by me, but I shall briefly deal with it as it was the subject of a prolonged discussion in this Court. It is obvious that mere separation in status did not ipso facto confer on Gaurishankar any right to a share in the joint family property which he was precluded from claiming under the Hindu law by reason of his disability. In the courts below as well as before us, an attempt was made on behalf of the respondents to show that a “a new title” had been created in Gaurishankar, and we were asked to infer this from the conduct of Harshankar and from other circumstances of the case. Various alternative theories as to the basis of such a new title were suggested such as gift, family arrangement and partition. But the main difficulty in the way of the respondents is that there is no positive and binding declaration or act of Harshankar on which any of the various theories can properly be founded and the whole case rests more or less on the inaction of Harshankar and his failure to contest the right of Gaurishankar to retain a half share in the property. Why Harshankar adopted such an attitude is not clear and was the subject of considerable speculation in the course of the arguments before us. In the circumstances of the case, it may be pertinent to ask at what time the so-called gift, family arrangement or partition became complete and acquired that binding character which it might have had if the transaction in question, to whatever category it may belong, had been embodied in a properly executed deed. It seems to me that if Harshankar had brought a suit to recover the properties in dispute within the period of limitation, he would have been able to do so in spite of his past inaction and failure to assert his rights. In Lala Muddun Gopal Lal v, Khikhinda Koe, a similar attempt was made to set up a new title, but the Privy Council did not recognize that a new title has been created. It is true that the present case is much stronger on facts, but on the whole I would prefer to rest my decision on the clearer and more substantial ground of limitation.

39. In the courts below, it was contended that Jodha Kuar was not validly married to Gaurishankar but both the courts have concurrently found on the evidence before them bearing on the degree of understanding possessed by Gaurishankar at the time of the marriage, that the marriage was valid and their conclusion must be accepted. A few other small pleas were raised before us in appeal, but I do not propose to deal with them, as it was conceded that, if Harshankar had no subsisting title to the disputed properties at the time of his death and that title had passed to Gaurishankar, these appeals must fail. I therefore agree that these appeals should be dismissed with costs.

40. Patanjali Sastri, J.:—I agree that the appeal should be dismissed. As the grounds on which I have reached the conclusion are somewhat different from those of my learned colleagues, I am adding a judgment of my own.

41. The material facts of the case, as to which there was no controversy before us, may be briefly stated. One Harshankar and his brother Gaurishankar were members of a Mitakshara joint family. Gaurishankar became insane in 1859, when he was about 17 years old, as a result of a virulent attack of small-pox. As Harshankar was running headlong into debts in a career of unrestrained debauchery and profligacy and was openly denying that Gaurishankar was entitled to any share in the ancestral property, his paternal aunt intervened with an application to the District Judge of Allahabad under the Lunacy Act of 1858 for declaring Gaurishankar a lunatic and appointing herself as guardian to take care of his person and a manager to take possession and manage his share of the family estate on his behalf. Accordingly, on the 14th August, 1874, she was appointed as his guardian and one Dalthamman Singh as the manager of his property without any opposition to the part of Harshankar. Since then the evidence in the case abundantly establishes, what indeed, Mr. Banerjee, counsel for the appellants, rightly conceded before us, that the manager had been continuously and exclusively in possession and management of an 8 anna share in the joint estate on behalf of Gaurishankar till 1881 when the Court of Wards took over and continued the management, and Harshankar was leasing his share and collecting rents separately and also paying Government revenue and obtaining receipts separately in respect of his share. Gaurishankar was married to Jodha Kuar in or about 1875 after he was declared a lunatic. Numerous legal proceedings followed in consequence of the debts incurred and the alienations made by Harshankar in all of which the half share of Gaurishankar was exonerated, the creditors and the transferees having failed to establish their allegations that Gaurishankar was a congenital idiot. To most of those proceedings Harshankar was made a party but he took no part in the contest. In 1889 Harshankar adopted one Gopal Saran as his son, and in 1897 both of them conveyed 79 villages, which were all that was left of Harshankar's share, to the Court of Wards who purchased them on behalf of Gaurishankar. The Court of Wards also purohased from time to time most of the properties partaining to Harshankar's share from his transferees or from auction purchasers in execution of decrees made against him, with the result that the bulk of what was originally the joint family estate was held by the Court of Wards on behalf of Gaurishankar at the time of his death in 1902. Harshankar died in 1903 leaving, besides his widow, a daughter, the mother of the appellants, and a posthumous son who died in 1905. The Court of Wards which continued in management of Gaurishankar's estate under s. 42 of the United Provinces Court of Wards Act for the purpose of discharging the debt borrowed by it for the purchase of the 79 villages aforesaid released the estate from its management in 1920 and delivered possession to Jodha Kuar who was enjoying it till her death in 1932. The appellants' mother died on July 10, 1924, and within 12 years of her death, the appellants brought the main suit in April 1936 against the respondents who were in possession of the bulk of the properties pertaining to Gaurishankar's estate under an arrangement with Jodha Kuar; while the respondents filed a counter-suit for ejecting the appellants from a house at Banaras belonging to the estate. Both the suits were tried together as they raised practically the same issues.

42. From the facts stated above it follows as an irresistible inference that there was a partition of the family estate in 1874 between the brothers in pursuance of which each of them held and enjoyed an 8 anna share separately. The whole attempt on the side of the appellants has been to nullify the partition and to make out that Gaurishankar died undivided and Harshankar succeeded to his estate by survivorship, for, in that case the appellants as the nearest reversioners of the posthumous son of Gopal Saran would be entitled to the property as the rightful heirs, whereas if the partition was valid and binding and put an end to the joint status of the brothers, the property would devolve on Gaurishankar's widow and on her death to the respondents.

43. It was accordingly the appellants' case that the lunacy proceedings and all the subsequent acting of the parties by way of separate possession and enjoyment formed part of an elaborate scheme engineered by Harshankar with a view to save at least one half of the joint estate from the clutches of his creditors, and that he had no intention of entering into a real and genuine partition with Gaurishankar or severing their joint status. Both the courts below have rejected this extravagant suggestion and nothing more need be said about it.

44. It was next contended—and this was the main contention—that as Gaurishankar was disqualified from claiming a share in the family estate neither a partition of that estate nor a severance in status was possible in law, and, although each of the brothers was in separate possession and enjoyment of a half share, they must be deemed to have remained undivided.

45. It was also contended, in the alternative, that even on the footing that Harshankar had become divided in status he succeeded to Gaurishankar's estate as his divided brother in the absence of any nearer heir, as Jodha Kuar's marriage to a lunatic was void under the Hindu law and she was not entitled to succeed as Gaurishankar's widow. These and the respondents' plea of limitation were the main points argued in the appeals.

46. In a normal joint family actings and conduct such as those of Harshankar and his brother would indubitably establish a partition and severance of the joint status. But it was said that the lunacy of Gaurishankar which disentitled him to claim a share precluded such result in the present case. It would no doubt be a contradiction in terms to call a transaction, whereby one of the two brothers takes the whole because the other is excluded from a share, a partition of family property. But that is not what happened here. Once the theory of a scheme to defeat Harshankar's creditors is rejected, the conclusion must follow that there was a real and genuine partition of the family estate although he had previously denied that Gaurishankar was entitled to any share of the family estate in his statement made before the revenue authorities on 15th August, 1872, could only be a matter of conjecture as no direct evidence on the point is forthcoming. The appellants' learned counsel suggested that Harshankar merely submitted to the inevitable as a division was forced upon him by the court's order appointing a manager to take charge of Gaurishankar's share of the family estate. The suggestion is rather inconsistent with the appellants' case that that order and the consequent happenings were brought about by Harshankar himself in pursuance of a deliberate plan to between the brothers at which Gaurishankar was allowed to take a half share without Harshankar insisting on his strict rights. What considerations induced him to enter into such an arrangement, save some at least of the family properties. The High Court thought that it was “very much more probable that the ladies of the family and their advisers were alarmed at the extravagance of Harshankar and brought pressure to bear upon him and induced him to agree to a partition of the family property between himself and his brother”. The respondents' learned counsel Mr. Dhar drew attention in this connection to the view generally held in the United Provinces for a long time that supervenient insanity could not divest the right to partition vested in a coparcener at his birth, and referred to Tirbeni Sahai v. Muhammad Umar. Indeed, within a few years after the partition, the High Court held, on that view, that Gaurishankar was “not disqualified by being born an idiot but that his insanity supervened after his uncle's and father's deaths and after his inheritance to them opened up”. Ten years later we find Stuart, C.J. remarking in Deo Kishen v. Budh Prakas that the law on exclusion from inheritance was “vague and uncertain” and its clarification would be attended with “no little difficulty”. And it was not until a Full Bench of that Court decided Mool Chand's case that the law was clarified in the sense that even supervenient disability could affect the right to partition accruing at birth to a coparcener. If, in that state of the law and circumstanced as he then was, Harshankar was persuaded, notwithstanding his earlier denial of his brother's right, to agree to divide the family estate with him in equal shares, and he consistently stood by that division till he died about thirty years later, it would surely not be right to allow his representatives to allege that such a partition should not have been made. There can be no question of want of consideration to support the arrangement. Harshankar thereby got rid of his liability to maintain Gaurishankar and secured family peace instead of gambling on a law suit in which, as he soon after discovered, the odds would have been heavily against him. The court will not be solicitous to scan the consideration for such family arrangements. I am clearly of opinion that the partition of 1874 was valid and binding on Harshankar and is not liable to be avoided by the appellants who claim under him.

47. An attempt was made on behalf of the respondents to support the partition of 1874 in the alternative as a gift or relinquishment of a half share of the joint estate by Harshankar in favour of his afflicted brother. But, clearly, no intention could be attributed to Harshankar situated as he then was to make a gift of half of the estate to Gaurishankar. That is not what he purported to do and the Court cannot spell out a valid gift from a partition which, on the supposition, is invalid. The High Court took the view that although Gaurishankar could not have claimed a share under the Hindu law, there was nothing in that law to prevent Harshankar from renouncing a half share in his favour, and that the partition could be supported as a renunciation pro tanto of Harshankar's interest in the family estate. But renunciation could only extinguish his interest and could not operate to vest title in Gaurishankar who had otherwise no title to the property.

48. Mr. Somayya on behalf of the appellants strongly relied on the decision of the Privy Council in Lata

Muddun Gopal Lal v. Khikhinda Koe  where it was held that an elder brother who recognised his younger brother, who was born deaf and dumb, as jointly interested with him in the family property in various transactions relating to it was not, in the circumstances of that case, precluded by such conduct from subsequently asserting his exclusive right to the whole property. Their Lordships took the view that the elder brother naturally and properly treated his afflicted brother as a member of the family and entitled to equal rights until it became absolutely clear that his malady was incurable and that there was no ground for supposing that the elder brother intended to divest himself of his own property or to waive any rights accruing to him out of the younger brother's incapacity. There was in that case no partition and separate possession and enjoyment of the family property as we have here, the elder brother having continued in actual possession of the whole property throughout and having also definitely asserted his exclusive right to the whole property before he died. The case turned on ts peculiar facts and has no application here.

49. In the view I have taken on the main question arising in the case, it becomes unnecessary to pronounce upon the other points argued before us, and I prefer to keep them open for decision until they should directly arise for determination.

50. Mahajan, J.:—These appeals have been brought from two decrees of the High Court of Judicature at Allahabad made in two suits, one instituted by the appellants and the other brought by some of the respondents. The suit of the appellants stands dismissed, while that of the respondents has been substantially decreed.

51. To make the evidence and the contentions put forward in the cases intelligible, it is necessary to set out the pedigree of the principal contestants in them. It is as follows:—

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The appellants, Parameshwari Nandan and Audeshwari Nandan, are the daughter's sons of Gopal Saran Singh, the adopted son of Harshankar Prasad Singh. As a posthumous son was born to Gopal Saran, they are sister's sons of the last male descendant of the branch of Harshankar Prasad Singh. The contesting respondents, Bindeshwari Saran and Bhagwati Saran are collaterals in the fifth degree of Harshankar Prasad and his brother Gaurishankar Prasad.

52. The appellants' suit was for possession of a valuable estate known as Anapur estate which comprises zamin-dari and house properties in the United Provinces. The suit of respondents 1 and 2 concerns a house in the city of Benares. In it a claim was also made for mesne profits. The estate and the house were acquired by Deokinandan Singh, a Bhimbar Brahmin governed by the Mitakshara Hindu law. In course of time the property was inherited by his son, and subsequently it passed by survivorship to his two grandsons. One of these, Earn Eatan Singh, died on 31st December, 1846 leaving him surviving two minor sons, Harshankar Prasad Singh, born in 1835, and Gaurishankar Prasad, born on 2nd February, 1842. Ram Parsan Singh, the uncle of these two was the kartha of the joint family consisting of himself and his two minor nephews. He died in the year 1854. At that moment the elder son of Earn Eatan Singh had attained majority but the younger son was still a minor. It was originally the appellants' case that the minor son was a born lunatic, but it is no longer disputed that at the time of his birth or even at the time of his father's death he suffered from no mental infirmity or weakness. It came to him while he was 16 or 17 years of age as a result of an attack of small pox. In 1854 the karthaship of the family devolved on Harshankar who had just attained majority. No sooner he came into possession of this valuable estate, the income of which was well over Rs. 50,000 a year, he started leading a fast life. The income of the estate proved insufficient to meet the expenses of his extravagant ways of living with the consequence that he began incurring debts. By the year 1863 the indebtedness had mounted up to the huge sum of about six and a half lakhs. To liquidate these debts one Mr. Smith was appointed an attorney and he sold some of the properties in 1863, 1864 and 1867 to certain persons. A mortgage deed of a considerable part of the estate was executed in favour of Madho Das on 25th May, 1878, to secure the debt of Rs. 2,50,000 due to him. The Benares house was also hypothecated to him. The same year on 29th May, 1872, another part of the property was sold in favour of some other persons. In this sale deed for the first time Harshankar asserted his exclusive ownership of the whole of the estate by reason of the lunacy of his brother and some time afterwards he attempted to get Gaurishankar's name removed from revenue papers.

53. It seems that Gaurishankar became insane in 1859 but he lived in commensality with his brother till 1872 or 1873. When his share was in danger of being sold in execution of decrees against Harshankar and the Benares house in which the family was living was also included in the decree for sale, his aunt took him to Anapur and since 1874 the two brothers lived separately and messed separately, one living at Benares and the other at Anapur. On 31st July, 1874, his aunt Babuain Naraini Kuar who was living with him at Anapur and was looking after him, applied for guardianship of his person under Section 9 of Act XXXV of 1858 on the allegation that Harshankar was squandering away not only his own share in the ancestral property but also the share of his brother and it was necessary to protect this share by appointing a guardian. This application was allowed on 14th August, 1874, with the result that she was appointed guardian of the person of Gaurishankar, while another relation, one Dalthamman Narain Singh was appointed manager of the lunatic's share in the ancestral estate. Gaurishankar was married in the year 1875 to Babuain Jodha Kuar, while he was under the guardianship of Naraini Kuar. Harshankar is said to have arranged the marriage.

54. The history of events subsequent to 1874 is one of struggle and litigation between the creditors of Harshankar and those in charge of the lunatic's share in the family property. It seems that Harshankar finding himself in a state of embarrassment and unable to save any part of his property from the clutches of his creditors, thought it prudent to allow the manager of the lunatic's estate to take charge of half the estate. The creditors, however, contended that he was the owner of the whole estate by reason of the lunacy of his brother and they were entitled to sell the whole estate in execution of the decrees. They however failed to establish their case. The manager appointed by the Court of the half share of Gaurishankar gave leases of his share to different persons, paid revenue for that share and performed various other acts of management in respect of that share. It was conceded before the High Court that the manager of the property of Gaurishankar Prasad 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. This concession made before the High Court was not questioned before us and it was reiterated that although there may have been a division in fact of the ancestral estate, it was for convenience of management only and did not create a division in status or division in title. It is pertinent to point out that the wajib-ul-arzes prepared after 1874 contain statements that the affairs of the two brothers were separate and that they were managing their shares separately. Some of these bear the signature of Rudra Prasad, who was an old and trusted agent of Harshankar.

55. On foot of the mortgage of the 25th May, 1872, Madho Das, the mortgagee, obtained a decree in the sum of Rs. 2,60,000 against Harshankar in 1875. In execution sale Madho Das purchased the mortgaged zamindari and the house property. This sale comprised a substantial part of the Anapur estate and included the Benares house. When he proceeded to obtain possession of the property so purchased, resistance was offered on behalf of Gaurishankar on the ground that his half interest in the property was not saleable and could not pass to the auction purchaser. Having been resisted in his attempt to obtain possession of the purchased property, the auction purchaser applied to the court for being put into possession. He alleged that the resistance offered on behalf of Gaurishankar was futile as he was a lunatic and had no share in any of the property comprised in the mortgage. This contention was negatived by the court and it was held that Gaurishankar was entitled to half share in the properties that had been sold at the court auction and the creditor could not take possession of that share. Harshankar's half share in the mortgaged property including the Benares house was sold in auction sale and was purchased by the decree-holder.

56. Encouraged by his success in the claim against Madho Das, the manager of the lunatic's estate brought a suit to contest the sale made in 1864 in favour of Manoharlal. He prayed for possession of the half share in the sold property in Suit No. 714 of 1876. The alienee defended the suit on the ground of Gaurishankar's congenital lunacy and other similar disabilities from which, it was alleged, he was suffering. It was assumed that if insanity was not congenital, Gaurishankar would be entitled to a share. This defence was held not established and the suit was decreed on the 18th December, 1876 for a specific half share in the sold property and the decree was upheld in appeal by the High Court of Allahabad. Harshankar was impleaded as a party in this litigation but he did not resist the manager's claim. He was content with his lunatic brother having a half share in the sold property.

57. At or about the same time the manager of the lunatic's estate raised a sum of Rs. 37,589 with the permission of the court from one Mahesh Das on foot of a mortgage of specific properties pertaining to the half share and including those intended to be purchased. The object of the loan was to purchase from an auction purchaser the share of Harshankar that had been sold at a court auction.

58. In the year 1877, nine suits were fought out between the creditors and transferees of Harshankar and the manager of the estate of Gaurishankar. In all these suits the manager was successful. Decrees were granted in his favour concerning the half share of Gaurishankar sold at court auctions or otherwise. The suits lodged by some of the transferees alleging that they were entitled to the whole estate failed. All these suits were fought out on the ground of congenital disability of Gaurishankar and the decisions in all these suits were upheld in appeal on 18th December, 1878 by the High Court of Allahabad and it was held that the lunacy had supervened after his father's death and Gaurishankar's interest in the family estate was not affected in any manner whatsoever by this disability. It appears that decrees for a specific one half share were granted in his favour presumably on the footing that the coparcenary had come to an end and the brothers were no longer members of a joint Hindu family. That very year a creditor of Harshankar filed a money suit against both the brothers and wanted to make both of them liable for the debt. His attempt to make Gaurishankar liable for a debt incurred by Harshankar failed. It was held that the debt was only recoverable from Harshankar and not from Gaurishankar. In the year 1879 the manager of Gaurishankar's estate contested another sale of the property made in the year 1867 by Harshankar. This suit was decreed for the specific half share of Gaurishankar. On 5th September, 1879 Harshankar leased 19 bighas of land to a certain person. The manager of the lunatic on 22nd January, 1888 sought the court's permission to lease to the same person an equivalent area of 19 bighas as belonging to the share of the lunatic. This fact very significantly shows that the manager was safeguarding the one half share (i.e., a defined share) of Gaurishankar in the ancestral estate in all possible ways and it is also significant that Harshankar himself was leasing a specific area of land as his property, which fact is inconsistent with a joint family status.

59. That very year whatever was left of Harshankar's share in the ancestral estate with him was taken over by the Collector under Section 326 of the Code of Civil Procedure of 1877. Naraini Kuar, guardian of the person of the lunatic, and Dalthamman Narain Singh, the manager of the estate, seem to have died at or about this time and one Suraj Narain was appointed manager in place of Dalthamman Singh. On 1st October, 1880 the new manager lent certain money belonging to the lunatic to one Baijnath Prasad on foot of a mortgage. This fact shows that mortgage of certain property was taken for the lunatic's benefit by the manager. Some time in the year 1880 or 1881 Gaurishankar's estate was placed under the charge of the Court of Wards and the order appointing a manager under the Lunacy Act was terminated. Thus the estate of the elder brother came under the management of the Collector under Section 326 of the Code of 1877, while the management of the younger brother's property was assumed by the Court of Wards. The result was that both the shares were separately managed by the Government and separate budgets were prepared for them. One was managed for the benefit of the creditors of Harshankar and the other for the benefit of Gaurishankar. One may pause here to remark that it is difficult to visualize a joint tenancy in these circumstances. Definition of the shares of the two coparceners made in 1874 became glaringly apparent when the two shares were held under two titles by the Collector.

60. A series of applications for actual partition by metes and bounds of agricultural lands in certain villages were made from the year 1882 by the Court of Wards under the provisions of the U.P. Land Revenue Act, with the result that lands in certain villages were partitioned in the years 1882 and 1886. As a consequence of these partitions the entries in the land revenue records were altered and each brother was shown as holding separate areas of land or separate villages. Separate kabuliyats were taken from the tenants and rents realized were kept separately and the revenue was paid separately. Some of these applications were made on behalf of Harshankar and were signed by his trusted attorney Rudra Parshad.

61. It seems that the widow of Gaurishankar made an attempt to persuade the Court of Wards to pay his debts out of Gaurishankar's estate, but these attempts were resisted by the Court of Wards and proved futile. In all her applications, however, she was careful to state that her suggestions were for the benefit of her husband's estate and were beneficial to his separate share. These assertions are only explicable on the basis that the lunatic had a separate half share in the property. One very strange circumstance in this history of events is, that Harshankar was getting a maintenance of Rs. 50 per mensem from his own estate and a similar payment was being made to him out of his brother's estate. The income of his brother's estate was in the neighbourhood of Rs. 20,000 a year. His wife was being paid maintenance allowance ranging from Rs. 700 to Rs. 2,000 a month. It is significant that Harshankar on whose behalf it is now claimed that he was the owner of this property could only get the paltry sum of Rs. 50 a month and that too by way of charity from it. This amount was later on raised to Rs. 100 and that too with the intercession and consent of B. Jodha Kuar. The receipt of this small amount out of the estate of his brother by Harshankar is glaringly inconsistent with the case now set up that he was the sole owner of the estate and Gaurishankar had no right to enjoy it separately or that the family was joint. It is only consistent with the position that the brothers were separate.

62. On 28th July, 1889 Gopal Saran was adopted by Harshankar and it was stated in the deed of adoption that if a posthumous son was born to him or if Jodha Kuar gave birth to a son, then the adopted son would get half the estate and the posthumous son or Gaurishankar's son would get the other half.

63. In the years 1891 and 1892 some more partitions of the zamindari lands in various villages were effected, at the instance of the Court of Wards of Gaurishankar's estate, with the Collector in charge of Harshankar's estate under Section 326 of the Code of Civil Procedure. Some villages of Harshankar had been sold in a court auction and they were purchased on behalf of the lunatic by the Court of Wards during this period.

64. In the year 1897 the Collector released the estate of Harshankar from his management and on the 19th June, 1897 Harshankar and his adopted son, Gopal Saran, conveyed to the Court of Wards of Gaurishankar's estate, 79 villages for a sum of Rs. 2,12,531-4-9 and an annuity of Rs. 4,180 to be paid to him during life and to his widow and the adopted son after his death. This transfer related mostly to property which had come to Harshankar's share in the partition of 1892, and it completely exhausted the half share of Harshankar in the ancestral estate. All that was left to him was his interest in the annuity obtained by him under the conveyance. By means of this transaction all the debts of Harshankar were liquidated. Gaurishankar's half share supplemented by the various purchases made on his behalf remained in charge of the Court of Wards for his benefit and to liquidate the debt raised to make the purchases.

65. Gaurishankar died in 1902 and his estate devolved on his widow Jodha Kuar. Mutations were effected in her name. The Court of Wards retained management of the estate as an amount of about two lakhs raised to purchase properties still remained unliquidated. It has to be observed that Harshankar was alive at the death of Gaurishankar who left a very valuable estate. Harshankar was in a state of poverty and if he had any rights by survivorship to this valuable property, it is inconceivable that he would have kept quiet and not asked the Court of Wards to release the estate in his favour as the only justification for the Court of Wards to maintain possession of it was a debt of about two lakhs. This could easily have been repaid by charging a small part of it. It is difficult to believe that Harshankar who was in straitened circumstances would let the Court of Wards keep possession of the property and would not arrange to pay the debt to recover the property then fetching an income of about one lakh a year.

66. Harshankar died on 16th June, 1903. After his death even Gopal Saran, his adopted son, did not lay any claim to the property left by Gaurishankar and which was in the hands of the Court of Wards. Neither Harshankar nor Gopal Saran approached the revenue authorities for effecting mutations of the zamindari estates in their names. These had been entered in the name of the widow. Gopal Saran died on 24th November, 1903. A posthumous son was born to him on 15th May, 1904 but he also died on 6th August, 1905. The widow of Gopal Saran also made no claim to the property either before or after 1920 when the estate was released by the Court of Wards. The Court of Wards throughout recognised B. Jodha Kuar as the owner of it. During the period between 1902 and 1920 Jodha Kuar spent of her own volition several sums of money for the benefit of plaintiffs' mother and grandmother as she was the only rich relation who could afford to meet expenses of various religious ceremonies in this branch of the family.

67. As already stated, Gaurishankar's estate was released by the Court of Wards in favour of Jodha Kuar in the year 1920. On that date she took over management of the property and entrusted it to certain agents appointed by her. After assuming charge of the property she effected certain alienations in favour of the mother and grandmother of the appellants as well as in favour of the respondents.

68. On 4th September, 1923 she transferred with the consent of respondents 1 and 2 a part of her estate in favour of Shyam Dulari Kuar, widow of Gopal Saran and grandmother of the plaintiffs. After the death of Shyam Dulari Kuar possession of this property was taken by respondents 1 and 2 as provided under the deed of gift. By another deed of gift some property was gifted by Jodha Kuar and possession passed to the donee of the gifted property on 6th September, 1923. The respondents are in possession of it and this is not included in this suit. At about the same time Jodha Kuar gifted to defendants 3 and 4, her nephews, certain property and also entered into an agreement with respondents 1 and 2 not to make any further alienations of the estate of her husband. She also agreed to limit her right to make gifts for charitable purposes and agreed to give an annual allowance of Rs. 2,400 to respondents 1 and 2. The 7th defendant impugned these alienations in the year 1925 and succeeded in obtaining a declaration to the effect that these would not bind the reversion but would be binding on defendants 1 and 2.

69. Jodha Kuar died on 11th August, 1932 and the estate in her hands was mutated in favour of respondents 1 and 2 after contest with defendant 7 who claimed a third share in it. The present suit was filed by the appellants in April 1936 claiming the property as preferential heirs as against the respondents.

70. The Benares house was sold in execution of the decree of Madho Das and was purchased by him. Madho Das could not recover possession of it owing to resistance offered by Gaurishankar. He brought a suit, 47 of 1877, but this was only decreed with respect to Harshankar's half share. It was dismissed qua Gaurishankar's share. On 22nd August, 1883 Madho Das sold the half share which was purchased by him, to Gaurishankar. Thus Gaurishankar became the owner of the whole house and on his death it came to Jodha Kuar who by a deed dated 4th September, 1923 permitted Shyam Dulari Kuar to live in a part of it. She lived in this part till her death in 1935. Defendants 1 and 2 got their names entered in the municipal registers with respect to it, realized rents, executed leases, paid taxes, and effected repairs. On the allegation that after the death of Shyam Dulari the appellants forcibly dispossessed them they sued for possession of the house, and for mesne profits at the rate of Rs. 300 a year. The suit was instituted on 9th September, 1936 during the pendency of the appellants' suit with respect to the rest of the property.

71. Both the suits were tried together and were decided at the same time. The appellants claimed the property in dispute on the allegation that Gopal Saran or his posthumous son were the last holders of it and the estate in law devolves on them after their death. It was asserted that on the death of Earn Eatan Singh the property in ordinary course of events would have passed by survivorship to his sons and Ram Parsan, but as Gaurishankar owing to congenital insanity could get no interest in it he ceased to be a coparcener; that on the death of Ram Parsan Singh in the year 1854 Harshankar became its exclusive owner and that being so, on his death it devolved on Gopal Saran and then came to his posthumous son and the appellants are next entitled to it. The case as regards Harshankar being the exclusive owner of the whole estate after the death of Earn Parsan, Gaurishankar having no coparcenary interest in it, was not seriously pressed before us. In the alternative it was alleged that Harshankar and Gaurishankar were members of a joint Hindu family and continued as such till the death of Gaurishankar in 1902 when by survivorship the whole estate passed to Harshankar and he thus became the exclusive owner of it and in course of succession the appellants are entitled to it. It was further pleaded that even if Gaurishankar was the owner of the suit property and was not joint with Harshankar, on his death it passed by succession to Harshankar as Jodha Kuar was not the legally married wife of Gaurishankar.

72.The various acts on the part of the manager of Gaurishankar's estate and of the Court of Wards in respect to the management of the half share of Gaurishankar and set out above were explained on behalf of the appellants on the ground that these were all planned by Harshankar as a part of a well thought out scheme to save the property from creditors for his own benefit. The mutation in favour of the widow of Gaurishankar was stated to have been allowed simply as a matter of consolation to her.

73. It was pleaded in defence that Gaurishankar was not congenitally insane, that on his birth he acquired an interest in the family estate, that subsequently there was separation between the brothers and after the separation they separately enjoyed their respective shares, and regarding certain properties partition was effected by metes and bounds. The scheme theory set up by the appellants was denied. It was also pleaded that the suit was barred by limitation both under articles 127 and 144 of the Indian Limitation Act, that Jodha Kuar was the legally married wife of Gaurishankar and that in any case after his death she by prescription acquired full interest in that estate.

74.  The trial Judge decreed the appellants' suit except in respect of the properties covered by the sale deed of 1897, in respect of which the suit was dismissed. The respondents' suit regarding the Benares house was also dismissed. On appeal the decrees of the Subordinate Judge in both the suits were reversed and the appellants' claim in both the suits was negatived, with the result that the suit in which they were plaintiffs was dismissed while the suit in which they were defendants was decreed against them.

75.  In the courts below a number of interesting points, both of fact and law, were raised and were discussed at great length by eminent counsel appearing for the parties. The Subordinate Judge and the learned Judges of the High Court dealt with all the points in the elaborate judgments given by them in the case. The decision of the appeal in my view, however, rests on certain narrow issues, (1) whether Harshankar and Graurishankar, the two brothers, were joint or separate in estate during their lifetime and at the time of Gaurishankar's death, (2) whether Jodha Kuar was his wife, and (3) whether the suit was barred by limitation. It is common ground now that Gaurishankar was not born insane and that his lunacy came about in the year 1859 after his father's death and when he was 17 years of age. That being so, the point for consideration is as to the effect of the supervening lunacy on his coparcenary interest and status.

76.  Most of the High Courts in India on a consideration of the texts of Manu and Mitakshara relating to this matter have expressed the view that the right of a member of a Hindu joint family to share in ancestral property comes into existence at birth and is not lost but is only in abeyance by reason of any disqualification. It subsists all through, although it is incapable of enforcement at the time of partition, if the disqualification then exists. If on the death of all other members the disqualified member becomes the sole surviving member of the family, be takes the whole property by survivorship. If he regains sanity, he can reopen a partition, if made during his disqualification and if a son is born to him who is not disqualified, the son takes what his father would have taken by reopening the partition unless the property has passed to bona fide purchasers for value. There seem no valid grounds to differ from this view. In Muthusami Gurukkal v. Meenamma, Seshagiri Ayyar, J. observed that if the exclusion of a disqualified heir to get his share allotted at a partition is not based on original sin or subsequent incapacity to offer oblations or the like the suggestion that it was due to a belief in the inability of the heir to manage temporal affairs appears more plausible, and that the old law-givers by providing for maintenance did not intend to deprive the heir of his inheritance, but only to provide for its management during incapacity. In Venkateswara Pattar v. Mankayammal, Varadachariar, J., before whom the matter was fully argued in view of its importance, saw no reason to dissent from the opinion expressed by Seshagiri Ayyar, J. Later on the matter was examined by a Full Bench of the Madras High Court in Amirthammal v. Vallimayil Ammal  and the observations of Seshagiri Ayyar, J. were approved. As already stated, this view has now been adopted by most of the High Courts in India. It seems to me that the disqualification created by insanity is purely personal inasmuch as it does not in any way affect the progeny of the lunatic; it is temporary in so far as it disappears when the infirmity disappears. In such a situation the true construction of the text of Mitakshara on the subject seems to be that a son becomes a sharer at the moment of his birth but ceases to be an enjoyer of that share when he is subject to a disqualification. His right is not lost but it is only in abeyance and tne provision for maintenance is not a deprivation of the inherent right but a beneficent provision for the management of property so long as the disqualification lasts. On this interpretation of the texts the revival of the right of partition in the disqualified heir in the event of the disability disappearing becomes easily intelligible and this interpretation also furnishes an intelligent explanation for the proposition that the sons of the disqualified heir cannot be affected by the disqualification, as well as for the view that the lunatic can take by survivorship if all others die. In my opinion therefore, the coparcenary status of Gaurishankar in the coparcenary estate was not affected by his lunacy and he continued a coparcener with his brother in the joint family and the High Court's decision on this point is correct.

77. Having found that Gaurishankar and Harshankar were two members of a coparcenary, the next point for determination is whether a division in status was possible in a family which consisted of two persons, one sane and the other insane, either at the instance of a person acting on behalf of the insane or at the instance of the sane coparcener; and whether the sane coparcener is debarred from making a partition with the disqualified person.

78. The contention raised on behalf of the appellants is that a lunatic has unsound mind and hence cannot disrupt the family by any declaration of intention on his part and no one can act for him. It was said that it would be futile and would be a mere piece of frivolity on his part to disrupt the family or to seek a partition when he has no right to get any share allotted to himself. It was further said that a partition at the volition of Harshankar would amount to conferring on himself by his own act the whole property and would lead to extinction of the lunatic's right of survivorship and therefore in the situation in which Harshankar was placed he could not exercise his right of bringing about a disruption in the family or of effecting a partition in estate. In this case it is unnecessary to examine the question whether any person acting on behalf of a lunatic can bring about a disruption in a joint family. The more important question which is decisive of the case is whether Harshankar had the right to separate from his brother in status and estate and whether he did so separate. The trial Court's decision on this point is in the following terms:—

“At first sight it may sound rather strange that Babu Harshankar Prasad Singh who had an unqualified right of claiming and enforcing a partition was deprived of that right because his brother was under a disability. If we examine the law carefully, it would appear that to grant a right of partition to Babu Harshankar Prasad Singh would not only be contrary to the provisions of Hindu law but also inconsistent with the principles of justice, equity and good conscience. Where a partition is claimed by a coparcener, each coparcener gets a definite share in lieu of his rights of ownership in the undivided property. If Babu Harshankar Prasad Singh were allowed to enforce a partition, then as no share could be allotted to Babu Gaurishankar, he would take the whole property and deprive the other coparcener, that is, Babu Gaurishankar Prasad Singh of his rights of ownership without conferring any corresponding advantage in the shape of a definite share. Babu Gaurishankar Prasad Singh would not only be deprived of the rights of ownership which had vested in him from his birth but as a result of partition he might probably lose the right to maintenance as well. I do not think a separated member can properly claim maintenance from another separated member. So by admitting the right of Babu Harshankar Prasad Singh to claim a partition during the insanity of his brother we would be depriving the latter of his vested interests in the property on a mere declaration by the former, ‘I am separate from thee’, for all that is necessary for partition under Hindu law is the expression of an unequivocal intention to separate. I do not think this was the result contemplated by the Hindu jurists and in the interest of justice and equity we must hesitate to accept an interpretation which may destroy the interest of persons who have already suffered a grave misfortune for no fault of theirs. That the Hindu jurists did not contemplate a partition between a disqualified person and his coparcener is evident from the fact that they allowed the afflicted person a right of participation if the defect be removed”.

79. The High Court reversed this decision and observed as follows:—

“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 Colebrooke it is stated in Chapter II, section 10, placitum 6, ‘They are debarred of their share 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 has 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”.

80. I have no hesitation in saying that the High Court was right in its decision. The contention, if carefully examined, cannot be supported either on principle or on authority. The Subordinate Judge was in error in saying that the existence of such a right in a coparcener is contrary to the principles of justice, equity and good conscience.

81. Briefly put, the appellants' contention amounts to this: that when in a joint Hindu family there are only two coparceners, one of whom is incapacitated, then in that case the other coparcener suffers from a disqualification inasmuch as he loses his inherent right of bringing about a disruption in the joint family by his own unequivocal expression of intention or by any conduct on his part which amounts to such an expression of intention. There is, in my opinion, no warrant for such a proposition in Hindu law. An obiter dictum of Varadachariar, J. in Venkateswara Pattar v. Marthayammal correctly expresses the rule on this point. The passage in the judgment with which I am in entire agreement runs thus:—

“When these considerations were pressed against him, Mr. Sastriar could only say that in such circumstances the other coparcener could not avail himself of the privilege of becoming divided by a declaration of his intention. But is this not recognised as a right of every coparcener Why should he suffer because there is no lawful guardian to receive notice on behalf of the coparcener under disability. In Kandasami v. Doraisami Aiyar the learned Judges refer to authorities which show that a partition may validly be made even without anybody representing a minor or absent coparcener (subject of course to the question of its fairness being open to examination). Why should that principle be confined to cases in which there is a plurality of coparceners besides the disqualified or absent coparcener Mr. Srinivasa Aiyangar maintained that once it is established that severance of status is a matter of right and of individual volition, there is no significance in the requirement as to notice, because the other coparceners have no voice in the matter”.

82. When there is no text of Hindu law disqualifying a sane coparcener from claiming partition in cases where the other coparcener is insane, it does not seem reasonable on purely logical grounds to disqualify him from a right which he possesses under Hindu law and which he attains at his birth and is inherent in his status as a coparcener. It is pertinent to point out that to deny him such a right seriously prejudices his position. He cannot make alienations, he cannot pass on succession to his separate heirs by destroying the coparcenary, and he cannot exclusively enjoy his share by walking out of the joint family. The sane coparcener may be an old man with a young wife, while the lunatic may be quite young. The sane coparcener in such a situation would like to disrupt the family so that his wife or daughter may be able to inherit to him. Can it be said that there is any rule of equity, justice or good conscience which can be invoked for denying him his right on the ground that his younger brother suffers from a disqualification or on the ground that if be is allowed to exercise his option its consequences will not be favourable to the lunatic, i.e., he would be deprived of his right of survivorship and the sane brother's share would be enlarged. The matter may be viewed from another aspect. Suppose the sane coparcener files a suit for partition. The filing of such a suit by itself amounts to a disruption of the joint family. Could this suit be defeated and decree denied to him on the ground that it is not maintainable because the defendant is a lunatic, though in law he can be represented by a guardian ad litem There is nothing either in the law of procedure or in substantive law in this country which denies to a sane coparcener the right of filing such a suit or enjoins its being dismissed on the plea above mentioned. I am sure no court would throw out such a suit on the plea of defendant's incapacity.

83. The Court may pass a decree in such a suit for partition after safeguarding the lunatic's rights. It may provide maintenance for him in the decree itself and may add a proviso that the lunatic has a defined share in the joint property and if he is cured of the disease, he will be entitled to recover that share, or that if he begets a son, he will be entitled to reopen the partition and claim a share. The right of survivorship, however, will end either by the decree of the court or by the filing of a plaint.

84. It was contended that even if Harshankar could bring about a disruption of the family by a unilateral action on his part, the partition would not be complete till notice of this intention had been communicated to the other coparcener and as no notice could be given to a lunatic, the partition would be ineffective. I am unable to subscribe to this proposition. The partition is effected by the unilateral act of a coparcener and assent of the other coparcener is not required to complete it. All that is required is that there should be evidence of the expression of an unequivocal intention by a coparcener and of its having been openly exercised. If the intention is imbedded in the bosom of a coparcener, then it cannot amount to an unequivocal expression or declaration of such an intention. It is however unnecessary in this case to finally pronounce any opinion on this subject because as a matter of fact, a guardian had been appointed for the lunatic and he could receive a communication on his behalf. As a matter of fact, it was he at whose ostensible insistence Harshankar conducted himself in a manner which disrupted the joint family. Moreover, when division of status is inferable from conduct, the question of notice becomes redundant and immaterial.

85. It further appears to me that the rule of Hindu law that a lunatic on regaining sanity can reopen a partition made during his disqualification and his son can also do so implies that a partition between a, qualified and disqualified coparcener is possible. It was said that this implication can only arise where there are several coparceners and one is insane but that it cannot arise in cases where there are only two coparceners, one sane and the other insane. It was contended that just as it requires two to a quarrel, it requires two persons to effect a partition. The answer to this argument is obvious enough. The two coparceners are actually there in existence. The right of both of them subsists in coparcenary property. The only question is of the method and mariner in which a partition could be effected between them. But the difficulty of that situation cannot lead to the extinction of the right. As already pointed out, it is the inherent right of a coparcener to disrupt the family by a unilateral expression of his intention regardless of the consequences it may entail on the lunatic and he cannot be deprived of it. It was conceded that a partition would be possible if there are three corparceners, two sane and one insane. This concession destroys the whole argument raised by the appellants on this point because in such a case also the results qua the insane would be the same. In other words, the insane would lose his right of survivorship which he has in case both die. Again the shares of the two coparceners would be enlarged by their own act. The distinction sought to be made between a case where there are two sane coparceners and one insane and the case of one sane and the other insane corparcener, to my mind, is a distinction without a difference and is based on a fallacy. The decision of the High Court on this point is therefore affirmed.

86. The real question for determination in the case is whether there is any conduct, act or declaration of Harshankar, unequivocal in character, from which it can be inferred that he separated from Gaurishankar.

87.The history of events recited in the earlier part of this judgment discloses that since the year 1874 Gaurishankar was allocated a share in the family estate against the injunctions of Hindu law. Both the courts below have held a separation in fact of the two shares. The manager appointed under the Lunacy Act took charge of the lunatic's half share and it was not denied before us that he actually managed that share, took the income of it, leased lands, paid revenue separately and in fact, exercised all the rights of a owner qua this share. Harshankar was completely deprived of all enjoyment in respect of this half and of his karthaship of it. There was exclusion of Harshankar not only from management regarding this half share in the joint family estate of which he was harta but he was also deprived of the usufruct of this half share. This could not have happened unless Harshankar himself was so minded and wanted these extraordinary events to happen, because otherwise he could have declined to allow the manager to take possession of any part of the property and would have told him that the man of whose estate he was appointed manager had no such estate and before he could take possession he should establish the title of his principal before a court of law. It seems that out of sheer necessity but not under any external influence, in the circumstances in which Harshankar was placed he willingly and voluntarily disrupted the family and defined the shares to which he and his brother were entitled to get at a partition. As a prudent man Harshankar fully realized the situation and after defining the shares allowed the manager appointed by the court to take the half share of Gaurishankar. He realized that if the whole estate remained with him, it was bound to go to his creditors and therefore in those circumstances it would be better to disrupt the family so that creditors could only take his half share and his brother was not prejudicially affected. The appointment of a manager and his taking over the management of the half share of Gaurishankar is incompatible with the continuance of a coparcenary between Harshankar and his brother. The share of the lunatic was specified and this specification in share must have been done by Harshankar himself by his conduct by allowing the manager to take possession of that specific share. In such a situation it is difficult to maintain that the family estate continued joint in spite of the specification of share and in spite of Harshankar having been deprived of the management of a half share in the ancestral estate.

88. In 1874 not only did Harshankar allow the manager to take a specific half of the lunatic in the above property, but in 1875 his attorney admitted this fact and signed the wajibularz. The manager after his appointment in 1874 not only received the income of the share of Gaurishankar in the estate and managed the whole of that share but he proceeded further and contested a number of alienations that had been made by Harshankar of the ancestral estate towards payment of his debts in favour of a number of alienees from the year 1863 till 1867. In these litigations it was asserted by the manager that Harshankar had no right to alienate the share of Gaurishankar and therefore he should be put in possession of that half share as against the alienees. Harshankar was impleaded in all these suits as a defendant. They were however decreed to the extent of the half share of Gaurishankar. In some cases transferees sued the manager as representing the estate of Gaurishankar and these suits were only decreed in respect of Harshankar's half and were dismissed with regard to the half of Gaurishankar. The question of congenital insanity of Gaurishankar and his being deprived of his share in the ancestral property was agitated by the creditors but was decided against them. It was assumed that the insanity of Gaurishankar did not deprive him of his coparcenary interest in the joint family property and that the manager of the estate was entitled to take separate possession of his share. The decrees in these suits are only compatible with the theory of disruption of the joint Hindu family by specification of shares and on no other basis. Effort was made in the trial court to explain away these litigations on the ground that all that happened after 1874, namely, separate management by the manager of Gaurishankar's half share, the litigations that followed and all other subsequent events were the result of a scheme planned by Harshankar to save his property from the creditors by nominally placing it in the name of his brother. This contention was abandoned in the court of appeal by one of the learned counsel who appeared for the appellants and was meekly argued by the other counsel, but the High Court rejected the contention. It was faintly suggested before us by Mr. Banerjee that all these events took place as a result of a scheme. There is however no material whatsoever to justify acceptance of the theory propounded on behalf of the appellants and it is difficult to base the decision of a case on the basis of mere conjectures. The subsequent conduct of Harshankar negatives this suggestion altogether. If the theory of the scheme propounded on behalf of the appellants cannot hold water, then the litigations narrated above are wholly incompatible with the continuance of the joint family and it must be assumed that specific share of Gaurishankar was being decreed in all these cases on the basis that Harshankar and Gaurishankar were separate. In the year 1881 the Court of Wards took possession of Gaurishankar's share, while Harshankar's estate had been taken over by the Collector under Section 326 of the Code of Civil Procedure of 1877. The two estates were treated separate from each other with the full knowledge of Harshankar and to his detriment and in denial of his rights as a coparcener and as exclusive owner and they are wholly incompatible with the existence of a coparcenary and his exclusive title in the property in dispute. There was not only cessor of commensality but cessor of unity of ownership and unity in title.

89. The Court of Wards did not only manage the estates but effected partition by metes and bounds of the estate of Harshankar and Gaurishankar in a number of villages in 1881, 1882, 1891 and 1892. Some partitions were made at the instance of the Collector representing Harshankar's estate and his attorney signed these applications. Separate villages were allotted to Harshankar and others to Gaurishankar. After the partition also a number of alienations were made by Harshankar of his own share. Properties sold at court auctions were purchased on behalf of Gaurishankar and separate mortgages and properties were acquired in the name of Gaurishankar by the Court of Wards. Eventually Harshankar was left as the exclusive owner of 79 villages to his knowledge. In the year 1897 he and his adopted son, Gopal Saran, sold these villages as their exclusive property for a sum of Rs. 2,12,000 to Gaurishankar through the Court of Wards and this transfer finally exhausted the whole of the ancestral estate in the hands of Harshankar, the sale price liquidated all his debts. This sale deed is wholly inexplicable on any other hypothesis except of a complete separation between the two brothers. The result of this transaction was that Gaurishankar became the owner of what was sold to him. His title was recognised to the part of the ancestral estate that was already in his possession. Under this sale deed Harshankar and his adopted son stipulated for an annuity from Gaurishankar and this could only be on the basis that they had no other property left with them and that the ancestral estate was no longer theirs. Previous to this sale deed Harshankar was receiving a maintenance allowance of Rs. 50 from Gaurishankar's estate. This was subsequently raised to Rs. 100 with the consent of Gaurishankar's wife. This circumstance very strongly tells against Harshankar having any interest as a coparcener in the property that was in charge of the Court of Wards as representing Gaurishankar's estate. To contend in the face of all these events that Harshankar was still joint with Gaurishankar by invoking certain rules of Hindu law, to my mind, is wholly futile. The facts and realities of the situation are too strong for the application of any hypothetical legal doctrines. It is obvious that Harshankar by his own volition disclaimed his claim to enter into possession of the lunatic brother's share in the property and allowed him in spite of his incapacity to enjoy it exclusively by effecting a partition.

90. Subsequent events fully support this view. Gaurishankar died in 1902. Mutation of his estate was effected in favour of his widow and Harshankar admittedly laid no claim to it whatsoever. He did not even make a demand from the Court of Wards about it. The plaintiffs' allegation in the plaint was that the estate was left with the widow for her consolation. This again is inconsistent with the theory of a joint family. What Harshankar would get by survivorship could not be given to the widow even for consolation. She would only be entitled to maintenance. The annual income of the estate was considerable and it is not believable that Harshankar would not have liked to take possession of it at once even if he had to pay to the Court of Wards a sum of two lakhs which was due to it from the estate and which could have been easily raised by mortgaging a small part of it. When Harshankar died, Gopal Saran was alive. He also took no action to get the estate or its benefit from the Court of Wards. Subsequently the estate would have come to the plaintiffs' mother or to their grandmother. Right up to the date of suit no efforts were made to get back the estate even after it was released by the Court of Wards in the year 1920. For full 18 years the widow Jodha Kuar was in exclusive possession of this property. She must have been paying the annuity that had been charged on a part of the estate to the heirs of Harshankar. She was making alienations of this property both in favour of plaintiffs' grandmother and mother and in favour of the reversioners. She was conferring benefits of this estate on all relations. She spent a considerable sum of money on the marriage of the plaintiffs' mother and also in performing the shradh of the adopted son. In all respects she was behaving as an owner of the estate and in denial of the rights of Harshankar and his branch. Her conduct was wholly inconsistent and incompatible with the ownership of this property vesting in that branch. The result of the above discussion is that the decision of the High Court on this point is maintained.

91. It was next contended that even if a partition was actually effected, then it would result in Harshankar becoming the owner of both the shares subject to the liability of payment of maintenance to his brother and that Graurishankar by reason of his disqualification would be deprived of his share and that being so, the possession of the property by the Collector and of the Court of Wards would be on behalf of the true owner and not adverse to him. This contention would have required serious consideration in a normal case and in a different set of events; but in the peculiar circumstances of this case has no validity. Granting that the effect of such a partition would be the conferment of title on Harshankar of both the shares, then the possession by the manager appointed under the Lunacy Act and by the Court of Wards of Gaurishankar's estate in respect of half the property would be in its inception unlawful and in denial of Harshankar's title. The application that was made by Naraini Kuar for the appointment of a guardian of the person and property of Graurishankar in clear terms stated that Harshankar was wasting the insane's property and therefore a guardian should be appointed to safeguard Gaurishankar's half share in the joint family property. The guardian appointed by the Court therefore proceeded to take possession of the property on behalf of Gaurishankar and in assertion of his title and in denial of Harshankar's title. His possession could under no circumstances be considered to be that on behalf of Harshankar who was the karta of the joint Hindu family and who was entitled to possession of the whole of the property if the joint family continued and who was otherwise entitled to the whole of it if it came to an end. In no event was Gaurishankar entitled to take possession of any property and nobody acting on his behalf or representing him could do so. It must therefore be held that the possession of the manager appointed under the Lunacy Act was hostile and adverse to Harshankar and would extinguish his title in this half share after the lapse of twelve years and the result would be that Gaurishankar would get by the rule of prescription what be had been deprived of under the texts of Hindu shastras. There is no principle of general law that a lunatic is incapable of acquiring or possessing property and that being so, on the facts of this case there is no escape from the conclusion that Harshankar's title, if he had any, to the share of Gaurishankar was extinguished after the expiry of twelve years from 1874 when possession of that share was taken openly and on behalf of Gaurishankar by Dalthamman Singh.

92. There is however another aspect of this question, which, in my view, is a complete answer to the contention raised on behalf of the appellants irrespective of the question of acquisition of prescriptive title by Gaurishankar in half of the family estate. It seems to me that Gaurishankar got title in half the joint family property by reason of the partition that was made at the instance of Harshankar with those representing the person and property of Gaurishankar. According to the law as it was understood in 1874, supervening lunacy did not operate as a disqualification resulting in a deprivation of a lunatic's share in the heritage. A partition could be claimed and effected with the lunatic as represented by a guardian. Harshankar in the year 1872 made attempts to establish that Gaurishankar was born insane. He, however, failed in those attempts as they were obviously based on false assertions. It seems that having found that his brother was entitled to claim a partition and to take possession of his share, in order to safeguard his brother's interest he voluntarily allowed partition and disrupted the family after fully realizing the implications of the situation in which he was placed. The result is that a partition having been made in the year 1874, the coparcenary came to an end and was converted into a tenancy in common. It was argued that a partition made on an erroneous assumption as to what the law was, was not binding on the person who was acting under that assumption and could be reopened by him or his heirs. I am unable to subscribe to this proposition. It seems to me that there is neither any provision of statutory law nor any principle of equity which furnishes a cause of action to a person who enters into an arrangement as to partition of family property with the other coparcener on an erroneous impression of law for getting rid of that arrangement. It was conceded that if such a partition was effected by a decree of court, it would conclusively establish the title between the parties to it. It was, however, contended that the rule applicable to decrees cannot be extended to cases of contracts or partitions made outside court. It is true that a decree stands on a different footing than an arrangement or contract privately entered into between the parties but it is well settled that such an arrangement or contract can only be reopened on the ground of fraud, undue influence, coercion or mutual mistake of fact. A mistaken view of law is no ground for granting relief to any of the parties as its ignorance furnishes no legal excuse to any person. I am further of the opinion that even if it is conceded for the sake of argument that Harshankar or his heirs were entitled to resile from the partition made in 1874 on the ground of error of law, they could only do so within three years of that date as the result of such an error would be to make the partition voidable at their instance; that not having been done, the partition became periect and cannot be avoided at this distance of time. In these circumstances, it must be held that by means of the partition of 1874 Gaurishankar became the separate owner of his half share in the family property.

93. There is yet another aspect from which this contention can be considered and negatived. The rule of Hindu law that a disqualified coparcener is not entitled to claim a share on a partition and enter into possession of it becomes operative only at the moment of actual partition and allotment. So long as the joint family continues, this rule does not come into play. It appears that before this rule can become operative it is necessary to arrive at the stage of definition and ascertainment of shares and bring about a separation in status. It is only at that moment when shares have been defined and ascertained and it becomes known what the lunatic's share is, that the stage arrives of depriving him of it and allotting it to the sane coparcener or coparceners, if there are many. Once the share of the lunatic is allotted to the other coparceners, they would acquire title in it under Hindu law, though that title would be a defeasible one. In other words, it would be liable to be defeated on the happening of certain contingencies. The question therefore arises whether before an actual allotment of shares a sane coparcener or coparceners, if more than one, are debarred by any rule of law from saying that they would forgo the benefit of this rule of Hindu law which disentitles a disqualified coparcener from sharing the heritage. In other words, can it be said that it is not open to them to waive their claim to the share of the disqualified coparcener which they would be entitled to get at the time of allotment Putting it in other words, can it be said that they are prevented by the rule of Hindu law which imposes a disqualification on an incapacitated coparcener from sharing in the heritage from allowing him to enjoy it. After considerable thought I have reached the conclusion that it is open to the sane coparceners to make a partition with the disqualified coparcener and to allot to him a share in spite of the Hindu law texts to the contrary. The rule laid down by the texts is a disabling rule and only deprives the disqualified heir from claiming as of right as to what he would be otherwise entitled to; but the rule does not go to the length of saying that the deprivation is of such a nature that the person for whose benefit it is laid down cannot waive its benefit. It was contended that any act on the part of the sane coparceners in letting the insane having his share would not confer title on him unless it amounts to a transfer of their title in his favour. In my opinion, no question of conferment of title by transfer on the lunatic by the sane coparceners arises in such a situation. My reason for saying so is that the lunatic's share can only pass to the sane coparceners once an actual allotment of that share after ascertaining it has been made to them, but if the waiver is made before that stage is reached, and the sane coparceners declare that they want no allotment to be made to them and that they are not prepared to have the benefit of this rule, title to the property does not vest in them. It is difficult to hold that the sane coparceners are under a mandate to take the benefit of the rule of Hindu law. So far as I can see, it is optional with them, as it is optional with any other heir or reversioner, to forgo and give up the spes successionis, if he so likes. It is open to a coparcener or coparceners whose share or shares are enlarged by the operation of the rule of disqualification to exercise their option by refusing to take advantage of that rule. I am of the view that if in a spirit of self-denial, the sane coparcener allows partition and a share is allotted to a disqualified coparcener, it is not open to them or their heirs to say afterwards that the partition made in these circumstances is not legal and binding and that the joint family continues in spite of it. Such waiver on the part of the coparceners of the benefit of the rule of Hindu law does not amount to a gift or a relinquishment of property as at the time the advantage is waived no title had passed to these persons. It is pertinent to point out that a disqualified person is only for the time being deprived of his enjoyment of the share under Hindu law but his enjoyment of it is resuscitated on the happening of certain contingencies. Complete ownership of his share never passes to the qualified coparcener. In such circumstances no question arises of conferment of a new title on him by reason of the transfer of that title in his favour by another. The point can be illustrated in the following way. Suppose the manager of Gaurishankar's estate had brought a suit claiming partition on behalf of Gaurishankar in spite of the disqualification and Harshankar instead of disputing the claim admitted it, would the court be bound to dismiss the suit in spite of the admission on the ground that the mandate of the Hindu shastras debars it from passing a decree on such an admission I am sure that the court will not be entitled to dismiss such a suit; on the other hand, it would be bound to allot a share on the basis of the admission and the allotment will be valid and binding and will terminate the joint family status. Can it be said that the situation is different if the claim is made and conceded outside court I think not, unless the defence is taken that the admission was of a purely gratuitous nature. In such a case it is not possible to raise this contention because by forgoing enjoyment of the share of the disqualified coparcener, the qualified coparcener is not only waiving a benefit that he has acquired but is also getting rid of the burden cast on him of paying maintenance to the disqualified coparcener and also of surrendering this share at the point of time when the disqualification disappears or a qualified heir is born to the disqualified coparcener. He is also by that procedure benefiting himself because it terminates his joint family status with the disqualified person and extinguishes the right of survivorship which otherwise would remain in that person. The result of this discussion is that even on this alternative ground Gaurishankar got a good title in his half share and hence it is only the heirs of Gaurishankar that are entitled to succeed to his share.

94. The next question for determination is whether the marriage of Gaurishankar with Jodha Kuar was invalid. In Mouji Lal v. Chandrahati Kumar, their Lordships of the Privy Council observed that an objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the extremely strong presumption in favour of the validity of a marriage which had taken place in fact. It was not argued before us that if it was proved that Gaurishankar did not suffer from such mental infirmity which wholly incapacitated him from understanding what a marriage was, then the objection as to the validity of the marriage could be seriously pressed. The trial Judge held that the mental infirmity from which Gaurishankar was suffering was not of such a degree as to rebut the presumption of the validity of the marriage. On the evidence it was held that the marriage was arranged by Harshankar and Gaurishankar took part in the essential ceremonies intelligently. In the result the trial Judge negatived the plea of the invalidity of the marriage. The learned Judges of the High Court thought that the question of the degree of unsoundness of mind of Gaurishankar was not very important and that the marriage under Hindu law being a sacrament, once performed and effected it became valid in law. An opinion was further expressed that the trial Judge was right in his decision that Gaurishankar was capable of understanding and complying with the simple instructions and fully understood what the marriage ceremony was and that in these circumstances it had been rightly held that the degree of insanity was not such as would invalidate it. In view of the concurrent finding of fact as to the degree of mental incapacity of Gaurishankar it is unnecessary to examine the question whether the marriage of a perfect lunatic, if performed in fact, would be legal, as this finding is decisive on the point. It was conceded that no cogent reasons exist for reopening this concurrent finding of fact arrived at by the two courts below. The result, therefore, is that the decision of the High Court on this point is maintained.

95. Other points agitated in the courts below were also argued before us. It is however unnecessary to express any opinion on them because the case stands decided on the issue of separation.

96. The result, therefore, is that both the appeals fail and are dismissed with costs.

97. Mukherjea, J.:—I agree that this appeal should be dismissed. As I do not feel inclined to accept as sound all the grounds upon which the High Court rested its decision, I think it proper to state shortly my own views on the different points that have been raised in this case and indicate, as precisely as I can, the grounds upon which, in my opinion, the order of dismissal of the plaintiffs' suit made by the High Court could be justified.

98. The main question involved in this appeal is one of succession, under the Mitakshara School of Hindu law, to a fairly big estate situated in the United Provinces and known as Anapur Estate, and the dispute is between two sets of rival claimants, one of whom purport to derive their title from the elder of two brothers and the other from the younger one. The determination of the question would have presented very little difficulty in spite of the somewhat voluminous evidence that has been adduced by the parties to the suit; but it seems that the fact of one of the two brothers, through whom title is claimed by the defendants, having been a lunatic, has lent an unusual complexity to the whole situation and has given rise to certain intricate problems which otherwise would not have arisen at all.

99. To appreciate the several points that have been canvassed before us in this appeal, it would be necessary to give a resume of the material facts in their chronological order. The properties, to which the suit relates, are spread over several districts in the United Provinces and they were admittedly acquired by one Deoki Nandan Singh who was succeeded by his son Janaki Prasad. Upon the death of Janaki Prasad, the estate passed by survivorship to his two sons Ram Ratan and Ram Parsan. Ram Ratan had two sons, the elder being Harshankar Prasad and the younger Gaurishankar Prasad, and it is through these two brothers that the parties to the suit claim their respective rights to the disputed properties. Ram Ratan died in 1846 and after his death, the joint family onsisted of three persons, namely, Ram Parsan, the uncle, and Harshankar Prasad and Gaurishankar Prasad, the two nephews. The plaintiffs' case was that Gaurishankar Prasad was a congenital lunatic and hence did not acquire any interest by birth in the ancestral property; but on that point, the findings of both the courts below are against them and the point was not pressed before us in this appeal. We would proceed, therefore, on the footing that Gaurishankar Prasad was not a lunatic by birth and that he became insane some time in the year 1859 when he was about 17 years of age as the result of an attack of a virulent type of small-pox. Ram Parsan died on 29th January, 1854 leaving a widow Narayani Kuar and on 22nd February following, Harshankar Prasad, who was then of age, applied for mutation of names in regard to the various “Ilaquas” comprised in the joint estate on his own behalf and on behalf of his minor brother Gaurishankar Prasad. This application was granted on 27th March, 1854 and the names of both the brothers were recorded as joint owners of the different properties.

100. Harshankar, after he came of age, rushed headlong into a career of dissipation and waste, and within an incredibly short period of time, the debts contracted by him mounted up to an enormous amount. In 1863 he appointed a European named Smith to manage his estate; but even this European Manager, with all his efforts, could not effect any appreciable improvement in his financial affairs. Several properties were sold between 1863 and 1870 on 25th May, 1872 Harshankar borrowed a sum of Rs. 2,50,000 from Madho Das Biswesardas, banker of Banaras, on a mortgage of the bulk of his estate, a part of the consideration for this mortgage, being an earlier loan of Rs. 70,000 advanced by the mortgagees themselves some time in the year 1865. When the affairs of Harshankar had thus reached an almost critical stage, Narayana Kuar, the widow of Ram Parsan, came forward to protect the interests of Gaurishankar. She removed Gaurishankar from Banaras to Anapur in the district of Allahabad, which was the original home of the family, and on 31st July, 1874 presented an application before the District Judge of Allahabad under Section 9 of the Lunacy Act (Act XXXI of 1858) stating inter alia that Gaurishankar was a lunatic and was incapable of managing his properties which were being dissipated by his elder brother, and that a proper guardian should be appointed for his person and property. On 14th October, 1874, the District Judge made an order, by which Gaurishankar was adjudged a lunatic and Narayani was appointed guardian of his person and one Dalthamman Singh manager of his estate. It appears in evidence that some time after this Gaurishankar was married to Babuain Jodha Kunwar.

101. It is an undisputed fact that Dalthamman, soon after his appointment, began to manage the half share of Gaurishankar Prasad in the Anapur Estate separately from Harshankar. Rents were collected and leases were granted separately and there was separate payment of Government revenue. There are several Wajib-ul-arzes of the year 1875 prepared for different villages appertaining to the Anapur Estate which testify to these facts and all of them were verified by the agents of both Harshankar and Gaurishankar. They show clearly that there was no longer any joint collection and consequently the question of division of profits did not arise.

102. On 23rd January, 1875 Madho Das Bisweswardas filed a suit on the basis of the mortgage deed mentioned above and obtained a decree on 3rd May, 1875. In execution of this decree, the Banaras house of the family, known as Deoki Nandan Ki Haveli, was put up to sale on September 6, 1875, and it was purchased by the mortgagee decree-holders. When the auction-purchaser went to take possession of the house, resistance was offered on behalf of Gaurishankar Prasad. The matter came up before the executing court and the latter decided that the remedy, if any, of the auction-purchasers lay in a regular suit and not in a summary proceeding. The auction-purchasers thereupon instituted a title suit, being Suit No. 47 of 1877, in the Court of the Subordinate Judge of Banaras for recovery of possession of the Banaras house. Another suit, which was Suit No. 51 of 1877, was also instituted by them claiming possession of the lands, stable and other appurtenances to the house at Banaras.

103. Before these suits were brought, Dalthamman Singh, on behalf of Gaurishankar Prasad, filed a suit in the Civil Court at Allahabad being Suit No. 714 of 1876, against Manoharlal who purchased a zemindary property from Harshankar in November 1864. It was alleged in the plaint that Harshankar had no right or authority to sell the half share of Gaurishankar Prasad in the property and as the transfer was not for family necessity or benefit to Gaurishankar, recovery of possession of the half share was prayed for. Harshankar was made a party to the suit but he did not contest it. On behalf of Manoharlal, it was contended primarily that Gaurishankar Prasad was a congenital lunatic and had been also blind and deaf from his very birth. In these circumstances, he did not acquire any interest in the property and the whole estate vested in Harshankar. By his judgment dated the 18th of December 1876, the Subordinate Judge decreed the suit and his decision was based principally upon the finding that the lunacy of Gaurishankar Prasad was a supervening disability which was not existing at the time of his birth. The decree directed recovery of possession of the specific half share of the property which was claimed by the plaintiff. There was an appeal taken against this decision to the High Court which was dismissed on August 10, 1877.

104. In 1877, Dalthamman Singh instituted seven other suits on behalf of Gaurishankar Prasad claiming recovery of possession of his half share in several properties against a number of persons who purported to have got them by private transfer from Harshankar or by purchase at auction sales in execution of decrees against him. These were Suits Nos. 55, 56, 57, 58, 71, 72 and 85 and Harshankar was made a party to all of them. These suits were heard along with the two other suits mentioned above, namely, Suits Nos. 47 and 51 of 1877 filed by Madho Das Bisweswardas, and they were heard together and disposed of by one and the same judgment by the Subordinate Judge of Banaras on September 11, 1877. The suits, in which Gaurishankar Prasad figured as the plaintiff, were decreed and those instituted against him were dismissed. The transferees from Harshankar Prasad raised the identical plea that was raised by Manoharlal in Suit No. 714 of 1876, namely, that Gaurishankar was born a deaf, dumb and lunatic, and consequently could not claim any interest in the ancestral property. This plea was negatived and the court held that the disability having occurred subsequent to birth, there was no loss of rights in law. This judgment was affirmed in appeal by the High Court of Allahabad.

105. On May 23, 1877, when the suits mentioned above were still pendiug, Dalthamman Singh, with the permission of the District Judge, executed a mortgage in favour of one Manohardas by which certain specific properties of Gaurishankar were hypothecated to secure an advance of Rs. 37,589; and with this money the half share of Harshankar Prasad in several properties, which had passed to purchasers at mortgage sale, were purchased on behalf of Gaurishankar. On 8th October, 1879, the entire property of Harshankar was taken over for management by the Revenue Department under orders of the Collector for payment of the decretal amounts due by him under the provision of s. 326 of the Civil Procedure Code of 1877. Both Narayani and Dalthamman died soon after that and under orders of the District Judge, the management of the lunatic's estate was made over to the Court of Wards. The Court of Wards took possession on 22nd December, 1881. On 16th June, 1882, the Collector filed an application on behalf of Harshankar Prasad, whose property was under his management, for perfect partition of Taluka Umarganj against Gaurishankar who was represented by the Court of Wards. It was expressly stated in this application that for a considerable time past rents were being separately collected under a private partition. Order for perfect partition of Taluka Umarganj was made on 24th of July, 1883. There were other applications of the same nature in the year 1883 and again in 1891 and 1892 in respect to villages situated in the district of Balia, and partition of lands and revenue was effected in all these cases under orders of the Revenue Department.

106. Harshankar, as said above, was heavily involved in debts and his financial position did not improve at all in spite of the management of his estate being taken over by the Collector. He received only an allowance of Rs. 50 from his own estate and another sum of Rs. 50 was allowed to him from the estate of his brother by an order of the Court of Wards passed in August, 1885. We find from the records that in 1888 the Collector of Gazipur recommended to the Commissioner of Banaras Division that a further sum of Rs. 50 a month out of the surplus income of Gaurishankar's estate might be given to Harshankar Prasad and it appears that in replying to this letter of the Collector, the Commissioner enquired whether Jodha Kunwar, the wife of Gaurishankar Prasad, had any objection to the allowance being increased to Rs. 100 a month.

107. In 1889 Harshankar adopted a son named Gopal Saran and on 28th July, 1889, a deed of adoption was executed. By this deed of adoption Harshankar Prasad purported to make certain dispositions of his own estate which were to take effect after his death. On 20th July, 1891, the shares of Harshankar in Talukas Ossia and Umarganj were sold by auction and they were purchased on behalf of Gaurishankar Prasad by the Manager, Court of Wards, for a sum of Rs. 1,49,000. In 1896 the estate of Harshankar Prasad was released by the Collector and on 18th of June 1897 Harshankar, together with his adopted son Gopal Saran, executed a sale deed in favour of Gaurishankar Prasad by which he conveyed to the latter his entire interest in 79 villages which were the only properties left to him at that date. The consideration for this transfer was a cash payment of Rs. 2,12,621 annas odds which went to wipe off the entire debts of Harshankar and an annuity of Rs. 4,180
 a year which was to be paid to Harshankar Prasad during his life-time and after his death to his wife and adopted son. On and from this date the entirety of the Anapur Estate vested in Gaurishankar Prasad and Harshankar Prasad lost all interest in the same.

108. In August 1902 Gaurishankar died, and the name of Jodha Kunwar, his wife, was mutated in his place in the revenue registers of the different Talukas. The Court of Wards still retained management of the estate purporting to do so under s. 42 of the Court of Wards Act, as there were still outstanding debts due by the estate which were incurred for the purpose of purchasing the shares of Harshankar in several properties. The Court of Wards in its dealings with the properties recognised Jodha Kunwar as the proprietress who held the estate in the limited rights of a Hindu widow. Harshankar made no claim to the estate after the death of his brother, although he had no property of his own. Harshankar died in June 1903 and Gopal Saran, the adopted son, died a few months later in November following. Gopal Saran left behind him his widow Shiam Dulari and a daughter named Eaj Kishori. The wife gave birth to a posthumous son on 15th of May 1904 and that son lived for little over a year and expired on 6th of August 1905. It is clear from the records that Shiam Dulari and her daughter lived with Jodha Kunwar as members of the family. Raj Kishori was married some time in 1912 and the Court of Wards sanctioned a sum of Rs. 15,000 which was paid to Jodha Kunwar for defraying the marriage expenses. On 11th of November 1914, a further sum of Rs. 10,000 was paid by the Court of Wards for the gawna ceremony of Raj Kishori. On 1st October, 1920 the Court of Wards released the estate of Gaurishankar Prasad and Jodha Kunwar took over management in her own hands. On 3rd September, 1923 a large number of documents appear to have been executed by Jodha Kunwar, and Bhagwati Saran and Bindheswari Saran the defendants 1 and 2 in this suit, as the nearest reversionary heirs of Gaurishankar, joined as parties to these documents. One of these documents was a deed of gift in favour of Raj Kishori Kunwar and another was a maintenance grant in favour of Shiam Dulari during her life-time. There was also an endowment created for the worship of an idol and the upkeep of a Sanskrit Pathasala and a gift of certain properties in favour of Jodha Kunwar's nephews who are defendants 3 and 4 in the suit. Jodha Kunwar died in August, 1932, and on her death the defendants 1 and 2 of the present suit, as the nearest reversioners of Gaurishankar Prasad succeeded in having their names mutated in the revenue registers in spite of opposition by defendant 7 who claimed one-third share in the properties. On 13th December, 1935, Shiam Dulari died. Raj Kishori had already died in 1924 and on 27th April, 1936 a suit was filed in the Court of the Subordinate Judge, Banaras, being Suit No. 31 of 1936, out of which this present appeal arises.

109. The plaintiffs in the suit are the two sons of Raj Kishori, the daughter of Gopal Saran, the adopted son of Harshankar. Their case, as made in the plaint, was that Gaurishankar Prasad being born deaf, dumb and insane, did not acquire any interest in the ancestral property and on the death of Ram Parsan, the entire estate vested in Harshankar who became the sole owner thereof. Harshankar being heavily involved in debts owing to his extravagant and licentious habits was apprehensive that his properties might be wholly swallowed up by his debts and finding no other remedy, he devised a scheme or plan for preservation of at least a half share of the estate. He gave out that Gaurishankar did not suffer from any congenital disqualification and was consequently a coparcener in the family estate. He then persuaded his aunt Narayani to file an application for guardianship under the Lunacy Act. The acts of Dalthamman in the matter of separate possession and enjoyment of Gaurishankar's share, the various litigations started and fought out by him and the several transactions into which he entered were all in pursuance of this scheme of Harshankar. After the death of Narayani and Dalthamman, it was Harshankar who arranged for the property being put under the management of the Court of Wards. Everything was done only to put up an outward appearance and even the sale deed executed by Harshankar and Gopal Saran in 1897 was a nominal transaction, the real object of which was the preservation of the family property. After the death of Harshankar in 1903, the entire estate, according to the plaintiffs, vested in his adopted son Gopal Saran; and on the death of Gopal Saran, it vested in his posthumous son. On the death of the posthumous son, his mother Shiam Dulari got the properties by right of inheritance and on Shiam Dulari's death, the plaintiffs, as daughter's sons of Gopal Saran, or rather as sister's sons of the posthumous child succeeded to the estate. In the alternative, it was alleged that even if Gaurishankar had any interest in the property, there was not and could not be a legal partition between him and Harshankar and as Gaurishankar died while the family was joint, Harshankar got the entire property by survivorship. A third alternative case was put forward at a late stage of the suit by means of an amendment in the plaint and it was averred that Gaurishankar being insane and impotent, his marriage with Jodha Kunwar was void in law. Even conceding, therefore, that Gaurishankar was separate from his brother, Jodha Kunwar, who was not a legally married wife, could not succeed to his property and the estate consequently devolved upon Harshankar as the nearest heir. In the plaint seven persons were impleaded as parties defendants. The principal defendants are defendants 1 and 2 and it is no longer disputed that if the properties in suit were the separate properties of Gaurishankar, they would be the nearest reversionary heirs after the death of Jodha Kunwar. Defendants 3 and 4 are the two nephews of Jodha Kunwar in whose favour a deed of gift was executed by the latter. Defendant No. 5 is a deity and a Sanskrit Pathsala who were the beneficiaries under an endowment created by Jodha Kunwar and they are represented by defendant 1 himself. Defendant 6 is a lessee under Jodha Kunwar and defendant 7 is an agnatic nephew of defendants 1 and 2 and he was made a party, as he had laid a claim to one-third share in the estate in the mutation proceedings commenced by defendants 1 and 2 after the death of Jodha Kunwar.

110. One written statement was filed by defendants 1, 2 and Sand in this written statement these defendants traversed all the material allegations in the plaint and denied that G-aurishankar Prasad suffered from any congenital disability. It was averred by these defendants that the plea of exclusion was no longer open to the plaintiffs and the matter was concluded by decisions of competent courts in several litigations to which both Harshankar and Gaurishankar were parties. The positive case of these defendants was that there was a complete disruption of the family and Harshankar became separate from his brother ever since the appointment of a manager to the estate of the latter under the Lunacy Act in 1874; and neither the appointment of a guardian nor the various acts and litigations in relation to the half share of Gaurishankar in the family properties were referable in any way to the scheme alleged by the plaintiffs in their plaint. In any event, it was said that the plaintiffs could not take advantage of any fraud committed by Harshankar. The defendants further asserted that the marriage of Gaurishankar with Jodha Kunwar was perfectly valid and even if the allegations of the plaintiffs were correct, the suit was hopelessly barred by limitation.

111. A separate written statement was filed by defendants 3 and 4 jointly and a third one by defendant 7; but none of them appeared or contested the suit. Defendant 6 remained absent throughout.

112. The suit was heard by the Additional Civil Judge of Banaras. On the materials in the case the trial Judge came to the conclusion that Gaurishankar was not a congenital lunatic and he did, therefore, acquire by his birth an interest in the family property. But as he became a lunatic before any partition took place and remained so till the date of his death, he could not claim any share in the joint property. In the opinion of the learned Judge, no severance of joint status or actual partition of joint property was possible between  two coparceners, one of whom was a person of unsound mind; and even if such partition was possible, Gaurishankar had no right to any share on partition as he had already become insane. The learned Judge found further that there was no partition in fact, inasmuch as no unequivocal intention to separate was expressed by Harshankar Prasad or was or could be expressed by Gaurishankar or anybody else on bis behalf. The proceedings and transactions relating to the shares of the two brothers were held to be an arrangement for convenience of enjoyment merely and they had not the effect of disrupting the status of the family. There was thus no separation of the joint status when Gaurishankar died and consequently Harshankar was entitled to the properties by right of survivorship.

113. With regard to the sale deed of 1897, by which Harshankar and his adopted son Gopal Saran purported to transfer 79 villages to Gaurishankar, the learned Judge held that the transfer did not affect the family status but it had in law the effect of extinguishing the right and interest of Harshankar and his adopted son in the properties conveyed by it. The plaintiffs are estopped from questioning the validity of this document. The marriage of Gaurishankar with Jodha Kunwar was held to be a valid marriage and Jodha Kunwar was held entitled to all the rights of a legally married wife. As, however, Gaurishankar died joint with his brother in the family property, the widow could not acquire her husband's properties by inheritance. The learned Judge decided the question of limitation in favour of the plaintiffs and according to him the possession of Jodha Kunwar became adverse only from the year 1920 when the Court of Wards released the estate. As at that time the legal owner of the property was Shiam Dulari, a female heir, time did not begin to run against the plaintiffs till the death of Shiam Dulari. According to the trial Judge, there was no fraud committed by Harshankar. In the result, the plaintiffs' suit was decreed in respect to all the properties with the exception of 79 villages which were covered by the conveyance of 1897, Against this judgment, an appeal was taken to the High Court of Allahabad by defendants 1, 2 and 5 — being Appeal No. 66 of 1939—and the plaintiffs also filed cross-objections challenging the propriety of that part of the decree which disallowed their claim with regard to 79 villages. The appeal was heard by Collister and Allsop, JJ. The learned Judges allowed the appeal and dismissed the cross-objections. The result was that the plaintiffs' suit was dismissed in its entirety.

114. The High Court has held, concurring with the trial Judge, that Graurishankar was validly married to Jodha Kunwar and as Gaurishankar suffered from no congenital disability, he acquired, by birth, an interest in the ancestral property. The High Court also agreed with the lower court in holding that Graurishankar having become a lunatic, while the family was still joint, was incapable in law to demand a share on partition. He was also incompetent to express any intention which might effect a severance of the joint family status; nor could such intention be expressed on his behalf by the Manager or the Court of Wards. The High Court held, however, that the long series of acts and conduct of Harshankar and also of the Court of Wards on his behalf manifested an intention on the part of Harshankar to renounce his title in favour of Graurishankar in respect to half share of the properties which would have normally been allotted to him if he was not under disabilities. These acts also manifested an intention to disrupt the status and there was nothing in Hindu law which prevented a sane coparcener from separating himself from an insane one. The other findings of the High Court are:—

(i) that the decision in the various suits between Gaurishankar or his Manager on the one hand and Harshankar and his transferees on the other operated as res judicata in the matter of establishing his right to a half share of the ancestral estate not only in respect to the properties which were the subject-matter of these litigations but with regard to the whole estate;

(ii) that the plaintiffs' suit is barred by limitation both under article 127 as well as article 144 of the Limitation Act; and lastly,

(iii) the suit is also barred under s. 233(k) of the Land Revenue Act.

115. It is against this decision that the plaintiffs have come up on appeal to this court.

116. The contentions that have been raised by the learned counsel appearing for the different parties in this appeal can be conveniently grouped under three heads.

117. The first and main question that is presented for our consideration is, what rights, if any, in the family properties vested in Gaurishankar Prasad who admittedly suffered from a supervening disability and remained a lunatic till the day of his death Could he have claimed partition or separation in status from Harshankar through his Manager or legal guardian and if this was not possible, was it competent to Harshankar to dissolve the coparcenary by unilateral acts of his own Can there be a division of joint property in Hindu law between a sane and an insane member of the family and was there, in fact, a partition between Harshankar and Gaurishankar in the present case If legally no share in the joint property can go to a lunatic, how did Gaurishankar acquire title to the properties in his separate possession, even assuming that it is established by evidence that there was a partition in fact

118. If Gaurishankar was not separate from his brother, as was found by the trial Judge, the properties would undoubtedly vest in Harshankar after Gaurishankar's death by right of survivorship. If he was separate, the further question would have to be answered whether the marriage between Gaurishankar and Jodha Kunwar was valid in law and Jodha Kunwar, as the legally wedded wife, could succeed to the separate properties of her husband

119. The third or last head of contentions relates to the various pleas in bar that have been raised by the defendants in the suit and we will have to determine whether the High Court is right in holding that the plaintiffs' suit is barred by limitation both under article 127 as well as article 144 of the Limitation Act, and that it is barred also by the rule of res  judicata and under s. 233(k) of the U.P. Land Revenue Act.

120.In dealing with the questions coming under the first head we would have to ascertain, first of all, the legal position of a lunatic member of a Hindu joint family governed by the Mitakshara Law.

121.The subject of exclusion from inheritance is discussed by Vignaneswara in Section 10, Chapter II, of his work. In the first placitum the author quotes the text of Yagnavalkya bearing on the subject and prefaces the quotation by saying that it is an exception to what has been said already respecting the succession of the son, the widow and other heirs, as well as re-united coparcener. The text of Yagnavalkya runs thus:

“An impotent person, an outcaste and his issue, one lame, a mad man, an idiot, a blind man and a person afflicted with incurable disease and the like are to be maintained excluding them however from participation”.

The text is fully explained in the placita that follow. In explaining what is meant by “niramsaka” or “excluded from partition” the author says in placitum 5:

“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 are not maintained”.

122. It is then said in placitum 6:

“That they are debarred of their shares if their disqualification arose before the division of property. But one already separated from his co-heirs is not deprived of his allotment”.

123 Placitum 7 which follows lays down:

“If the defect be removed by medicaments or other means at a period subsequent to partition, the right of participation takes place on the same principle on which ‘when the sons are separated one who is afterwards born of a woman equal in class shares the distribution’ is based”.

124. In placitum 9, a portion of another text of Yagnavalkya is quoted which says:

“But their sons whether legitimate or born of the appointed wife are entitled to allotments if free from defect”.

125. This is explained in placita 10 and 11. The rest of the section is not material for our present purpose.

126. It would appear from the texts quoted above that under Mitakshara, lunacy or similar other disqualfication would prevent a person from getting a share in the joint property if the disqualification arose before partition. In case he is already separated, he would not be divested of the allotment already vested in him, and further if at a subsequent time he is relieved of his affliction, his right of participation would take place on the analogy of an after-born son. Lastly, the disqualification is purely personal and the sons of the afflicted person would be entitled to allotment if they are themselves free from any defect.

127. Strictly speaking, the texts do not make any distinction between congenital and supervening disability. The material time, it seems, is the date of partition, and if the defect exists at that time, exclusion would be the result. The right to participation can, however, be exercised as soon as the disqualification is removed.

128. Under the Mitakshara law, a son, as soon as he is born, acquires by birth an interest in the ancestral property and becomes a coparcener in the joint estate. The question is: Does he cease to be a coparcener if lunacy supervenes subsequent to his birth It will be seen that the expression “niramsaka” used in Yagnavalkya's text means and implies that the disqualified person is deprived of his share in case of partition with the coparceners. There is no suggestion that the coparcenary right, which he has already acquired by birth, is totally extinguished. If that was so, the afflicted member would not have been capable of transmitting a coparcenary right to his own son. A bodily or mental infirmity does not operate as a civil death and does not per se incapacitate a personfrom holding property; for, if a separation has taken place already, the coparcener, who has got an allotment, does not lose it by reason of his subsequent disqualification. The analogy of an after-born son has been referred to by Mitakshara by way of illustration merely and seems to have been invoked only as an authority to support the right of the disqualified member to participation in the family estate after the defect is removed. The position, therefore, is that the rights created by birth are not lost or extinguished by reason of any supervening disability; they continue throughout and are kept only in abeyance or suspense so long as the infirmity lasts.. The disqualified person never ceases to be a coparcener and his right of survivorship in the absence of other coparceners is not destroyed. This view has been taken in a large number of cases by the different High Courts and reference may be made, amongst others, to the cases of Moolchand v. Chahta Devi, Muthusami v. Meenammal, Musammat Dilraj v. Rikheswa, and Vithaldas v. Vadilal. In my opinion, the view taken in these decisions is perfectly sound.

129. In a recent Pull Bench case of the Madras High Court, the learned judges on a review of previous authorities have held that even a congenital idiot, who is capable of marrying and begetting children, has the status of a coparcener under the Mitakshara law, although he is excluded from the enjoyment of his share so long as his disability lasts. In support of this view, reliance was placed upon certain texts of Saraswati Vilasa which is authoritative in the Southern Presidency and where a distinction has been made between disabled persons who can marry and beget children and those who cannot. The class of persons coming under the first category are “share takers” and not “share enjoyers”, while those coming under the second are not “share takers” at all. It is not necessary for our present purpose to express any final opinion as to whether a congenital lunatic is or is not a coparcener under the Mitakshara law. It is enough for our purpose that Gaurishankar Prasad has been held by both the courts below not to be a congenital lunatic and consequently there cannot be any doubt that he would rank as a coparcener in law.

130. The question now is whether there could be a separation in law between Harshankar Prasad and Gaurishankar Prasad and if so at whose instance Under the Mitakshara law, partition consists in defining shares of the coparceners in joint property. Actual physical division is not necessary. The definition of shares may be expressed by an agreement which declares the shares and even without the concurrence of all the coparceners, any single male member can, by exercise of his own volition, put an end to the joint tenancy so far as he is concerned. The other members have no option but to submit to it. In the case before us, there were only two coparceners, one of whom was a lunatic. A lunatic, as said above, is not entitled to any share on partition even though he remains a coparcener. Ex hypothesi he cannot demand a partition. There could be no analogy between a lunatic and a minor in this respect. A minor member of a joint family is entitled to a share on partition quite in the same manner as an adult member and he suffers from no incapacity in this respect. The minor may not be able to give expression to an effective intention to separate but this can be done on his behalf by his legal guardian and a partition can take place even at the instance of a minor's guardian, provided the court considers it to be beneficial to the infant . But the manager or a legal guardian of a lunatic cannot exercise a right which the lunatic himself does not possess. The learned Counsel for the respondents in this connection drew our attention to a decision of the Judicial Committee which is to be found reported in Bam Narain v. Mst. Makhn. In my opinion, this decision really does not assist the respondents. In this case there was a suit for partition brought by two of the four coparceners against the other two. One of the defendant coparceners, whose name was Deo Singh, was a lunatic. The preliminary decree directed a division of the property into two halves and then the guardian ad litem of Deo Singh applied for the separation of the lunatic's share. This application was granted by the trial Judge but was rejected on appeal on the ground that the court was not competent to entertain such application after the preliminary decree was passed. Deo Singh died during the pendency of this appeal and his wife was substituted in his place as his legal representative. By the final decree the property was divided into two halves, but it was not shown that the lunatic had remained joint in estate or that the application to sever was contrary to his interest. The question raised before the Judicial Committee was whether the lunatic had become separate in estate. The question was answered in the affirmative and it was held by their Lordships that “the decree is not a necessary condition of separation in interest and the ordinary right of a coparcener to effect a separation of his interest—as distinct from a partition by metes and bounds—by a proper declaration of his desire to sever, is not abrogated by the mere fact that he has not claimed to exercise it prior to the preliminary decree”. The application by the guardian ad litem of the lunatic for a separate share of the latter effected therefore a severance of the joint status. It is to be noted, however, that in this case the courts in India proceeded upon the view that although Deo Singh was a lunatic at the time of partition, he was nevertheless entitled to a share not having been born a lunatic. This doctrine, as their Lordships of the Judicial Committee pointed out, prevailed in the High Court at Allahabad since Tirbeni v. Mohamma but after the present case was decided by the High Court, it had expressly been departed from by the Full Bench decision in Moolchand v. Chahta Devi. The Judicial Committee was not called upon to review those decisions and both the parties invited their Lordships to proceed upon the assumption that a lunatic is entitled to claim separation if his defect was not congenital. The particular question, therefore, that arises for consideration in this case was not decided by the Judicial Committee and the observations of their Lordships make it quite clear that they felt the position to be somewhat embarrassing, inasmuch as they were called upon to decide the rights of the parties upon an artificial assumption against which there were authoritative decisions by several High Courts.

131. The conclusion, therefore, is that a lunatic can neither demand or enforce a partition, nor can he through a guardian or otherwise be party to an agreement by which partition is effected. We have now to consider whether it was open to Harshankar to effect a separation between him and his brother.

132. There is certainly nothing in Hindu law which prevents a member of a Mitakshara joint family, who suffers from no disability, from separating himself from a lunatic member who is incapable of demanding a share in law. The rule laid down by Mitakshara in placitum 6, Section 10, Chapter II, quoted above clearly contemplates that a partition can take place even when a member of the family is a lunatic. Mr. Somayya, appearing for the plaintiffs appellants, has contended before us that a partition or separation in status in the present case could have been possible if there were coparceners other than Harshankar, between whom and Harshankar there could have been a division of property. According to him, when there are two coparceners only, one of whom is a lunatic, no partition is possible or legal. The objections formulated by him are of a two-fold character. In the first place, he says, that a partition in such circumstances means no division of property at all and the entire property goes to one of the members of the family to the total exclusion of the other. In the second place, such separation is grossly unfair for not only is the disqualified member excluded from a share in the property but he is deprived of the future right of survivorship which might accrue to him under certain circumstances. It does not seem to me that these contentions are sound. So far as the lunatic is concerned, his position would remain the same whether the number of other coparceners is one or more. He will not, in any case, be given any share in the property and his future rights of survivorship would also be effectively cut off. It is immaterial to him whether it is cut off at the instance of one or more than one member. Again a division of property is not essential to the conception of partition under Mitakshara law. If a lunatic member, who is not entitled to a share, still retains coparcenery interest which enables him to get the entire property by right of survivorship if and when such contingency arises, then, even though there is only one other coparcener in the family, that one cannot properly be denied the right of effecting a severance in status at least for the purpose of destroying the right by survivorship remaining in the lunatic member. He may have his wife and daughters and no male issue and it would certainly be to his interest to release himself from the obligations arising from joint status so that the property might devolve by succession after his death. This view receives considerable support from certain observations made by Varadachariar, J. in Venkateswara v. Mankayamma.

“Once the conclusion is reached” thus observed the learned Judge, “that a disqualified person may be coparcener enough to take by survivorship, there is no reason why we should deny the possibility of such a severance of the joint status as would put an end to the right of succession by survivorship.”

133. True, in this case the family consisted of a father and his disqualified son and reliance was placed upon certain Hindu law texts which confer special powers upon father in the matter of separating his children from him. But quite apart from the special powers of the father, the observations made by the learned Judge would go to show that the position could be supported as between ordinary coparceners under the general principles of Hindu law.

134. Thus it being clear that Harshankar could have effected a severance of the joint status by acts and declarations of his own, we have now to enquire whether such separation has been established as a fact by the evidence adduced in this case.

135. It is well settled that in Mitakshara law it is not necessary that all the coparceners should agree to effect a disruption of the joint status and it is also not necessary that there should be actual division and distribution of the property held jointly. The severance of the status of jointness, as the Privy Council has observed on more occasions than one, is a matter of individual volition. If there is a clear and unequivocal intimation by one member of a joint family to his co-sharer of his desire to sever himself from the joint family, there is in law an immediate separation. There is no difficulty when the declaration is explicit. In case when there is no express declaration, an inference in support of the intention to separate would have to be gathered from the conduct of the parties which would necessarily be different according to the varying poses of each case. As the Judicial Committee observed 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 disruption of the joint undivided family and convert a joint tenancy into a tenancy in common must depend on the facts of each case.”

136. In a family consisting of two brothers, one of whom is an insane, if the sane brother wants to dissolve the joint status, the normal procedure to follow would be to express his intention to that effect and communicate it to the guardian or representative of the lunatic. As the lunatic is not entitled to a share, no question of division of property or even definition of shares would at all arise. It would be notional separation pure and simple which would have the effect of destroying the future right of survivorship which the lunatic might possess. Admittedly nothing like that happened in the present case. There was no express declaration on the part of Harshankar expressing his intention to separate himself from his brother. There was, however, a definite change in the conduct of Harshankar vis-a-vis the joint family on and from the time when the application for appointment of a guardian of the lunatic was made by Narayani and an order to that effect was made by the District Judge of Allahabad.

137. In 1874 Harshankar was admittedly over head and ears in debts and there was every chance of his whole property being engulfed in the ruin. Narayani Kuar came forward apparently in the interest of the lunatic, and as her application shows, wanted to save the lunatic's share of the property from being dissipated by the elder brother. It is really immaterial to enquire under whose advice or guidance she took the step. The application was made for appointment of a Manager in respect of Gaurishankar's share of the joint property. Harshankar, who was a party to the proceeding, could certainly have resisted this application. It is an extremely debatable point whether a guardian could be appointed in respect of an undivided interest in the property of a Mitakshara family. Apart from that, it could certainly have been argued on behalf of Harshankar that G-aurishankar being a lunatic had no share in the family property which was enforceable by partition; and if he was not entitled to have his share separated by partition, it was absurd to appoint a guardian in respect of that share. In my opinion, the courts below were perfectly right in holding that the order appointing a guardian under the Lunacy Act did not, by itself, effect a severance of the joint family. What did effect a severance, however, was the conduct of Harshankar in accepting, without protest, the situation created by the order of the District Judge and in actually holding from that time onward all the properties of the family in divided shares of half and half. This intention can fairly be gathered from his conduct and the long course of subsequent acts and proceedings bear out and confirm this original intention and remove the least doubt or ambiguity about it.

138. I do not think that in accepting the order of the District Judge, Harshankar was merely submitting to the inevitable. It was open to him to take such steps as are allowed by law and he could certainly have resisted the attempt on the part of the lunatic's Manager to take separate possession of a half share of the properties and realise rents separately. There is no convincing evidence to show that any portion of the income arising from the separated share of Gauri-shankar came to Harshankar or to any common coffer, and the wajib-ul-arzes of the year 1875 which were verified by Harshankar ‘s agent prove that the collections were entirely separate and there was not even a question of division of profits after the realisations were jointly made.

139. I cannot believe that the acts and proceedings commencing from the application of Narayani Kuar in 1874 were the outcome of any ‘scheme’ which was conceived and planned by Harshankar for the purpose of rescuing his properties from the clutches of creditors. This case was definitely abandoned by the senior counsel appearing for the plaintiffs before the High Court. Harshankar was certainly apprehensive of losing his properties but it may be that he genuinely believed that as Gaurishankar was not a congenital lunatic, he was legally entitled to a half share in the property. It is clear from the observations of the Judicial Committee in Ram Narain v. Mst. Makhna that that was the view of law generally entertained in the United Provinces till the Full Bench case of Moolchand v. Chahta Devi was decided in 1937. We find that in all the cases that were fought out between the lunatic's Manager on the one hand and the various creditors of and transferees from Harshankar on the other, the only material question mooted and discussed was whether or not Gaurishankar suffered from congenital lunacy. It appears to have been uniformly assumed that if his disability was a supervening one, he would have a share in the joint property enforceable by partition. It is quite probable that Harshankar acted upon some such views; and at any rate, circumstanced as he was, there was no chance of his profiting in any way by claiming the entire property as his own. If Gaurishankar was entitled to a half share in the property, at least that half would be saved, and to me it seems that on this hypothesis alone the entire conduct of Harshankar can be consistently explained. It is true, as Mr. Somayya argues, that Harshankar is not proved to have any particular affection for his brother nor was he prompted by any feeling of generosity. It was an act which he considered to be legal and proper and which, without making his position worse in any way, would certainly secure to his brother a half share in the properties. Whatever his exact motives might have been—and it is difficult to scan them at the present day—I have no doubt in my mind that the natural inference from the conduct of Harshankar is that from the date of appointment of the guardian in 1874, he definitely intended to hold only a half share of the joint properties as his separate and exclusive property and the other half he allowed his brother's guardian to enjoy as a separate estate. This was sufficient to effect a severance of the joint status and the events that followed only carried into effect the intention expressed by his conduct in 1874. In 1875, as I have already stated, there were wajib-ul-arzes prepared and signed by agents of both the brothers which indicate that the properties were held in defined shares. During the two following years we have a number of litigations between Dalthamman as Manager of the lunatic and the different purchasers from Harshankar on the other; and to all these suits Harshankar was himself a party. It is to be noted that in all these suits, claim was laid on behalf of Gaurishankar to specific half shares in the properties in dispute and that claim was allowed. With regard to the properties covered by the suits, the decisions would be conclusive and establish a separate title of Gaurishankar to specific shares in them as against Harshankar who was a party to these suits. Apart from the fact that the attitude taken by Harshankar in all these litigations is perfectly in accordance with the intention expressed by his conduct in 1874, the actual decisions in the suits would undoubtedly take away the character of the jointness from the particular properties which were the subject-matter thereof. In a way they would be indirect evidence of separation in the family, though, by themselves, they cannot be held conclusive.

140. The separation between the two brothers was further accentuated by the Collector's taking possession of Harshankar's share of the properties for purpose of satisfying his decretal debts under s. 322, Civil Procedure Code, 1877; and two years later in December, 1881, the separated half of Graurishankar's estate was taken over for management by the Court of Wards.

141. Each share was thus managed as a completely separated estate.

142.  In the years 1882 and 1883 again in 1891 and 1892 we find that applications for “perfect” partition of several Mahals were filed by the Collector on behalf of Harshankar Prasad. Harshankar was not a ward of the Court, though his properties were under the management of the Collector under the provision of s. 322 of the Civil Procedure Code. It can scarcely be argued that these were not the acts of Harshankar. Harshankar not only raised no objection but we see that the wajib-ul-arzes and the partition Khasras were signed by his own Karinda. The lands of the Mahals were divided and formed into separate revenue paying units; and a number of these Mahals, which became the exclusive properties of Harshankar, were included in the conveyance which Harshankar and his adopted son executed in favour of Graurishankar Prasad in 1897.

143. During the entire period commencing from 1881 when the Court of Wards took over management of Gaurishankar's estate and ending with 1903 when Harshankar died, there was nothing said or done by Harshankar which would give the slightest indication that he was treating the property of Gaurishankar as the joint property of the family. As has been said already, in view of the large demands of his creditors, the Collector could pay to Harshankar a meagre allowance of Rs. 50 only per month. It was purely a charitable act on the part of the Court of Wards to sanction in the year 1885 the payment of another sum of Rs. 50 to Harshankar out of the surplus income of Gaurishankar's estate. In 1888 the Collector of Gazipur recommended to the Commissioner, Banaras Division, that in view of the extremely distressed condition of Harshankar, a further sum of Rs. 50 per month might be allowed to him out of Gaurishankar's estate. The Commissioner in reply wanted the Collector to ascertain whether Jodha Kunwar, the wife of Gaurishankar, had any objection to the allowance being increased to Rs. 100 per month from the estate of the lunatic, and it was with the consent of Jodha Kunwar that the sum of Rs. 100 per month was sanctioned by the Court of Wards. It appears from the evidence that Harshankar was suffering from eye troubles, and the Court of Wards did not sanction a sum of Rs. 5,000 which was prayed for by Jodha Kunwar herself for the treatment of his eyes. In 1889 Harshankar adopted Gopal Saran as his son. By the deed of adoption which he executed on 28th July, 1889, he attempted to make certain dispositions of his properties which were to be operative after his death. He made provisions for his wife, for any son that might be born to him in future and even for a son that Gaurishankar might have had. But there is no indication in the whole document that he thought that he had any existing or any future claim to the properties of Gaurishankar which were under the management of the Court of Wards. On the 6th March, 1896, the properties of Harshankar were released by the Collector and by a deed of transfer executed in June 1897, in which, his adopted son Gopal Saran joined, he sold all the properties which were still in his possession to Gaurishankar for a cash consideration of Rs. 2,12,000 and odd and an annuity of Rs. 4,180 only. He thus divested himself from the last vestige of the estate that was in his possession till then and kept nothing in his hand which he might call his own with the exception of the annuity which was reserved by the deed of transfer. This act of transfer has not been challenged on behalf of the plaintiffs-appellants and it proves conclusively, if further proof were necessary, that on and from 1874 Harshankar regarded himself completely separate in estate from his brother, and the properties which he possessed up to 1897 were the only properties he reckoned as his own.

144. Gaurishankar died in November 1902 and the Court of Wards retained possession of his estate under section 42 of the Court of Wards Act and treated his wife Jodha Kunwar as proprietress thereof. It is significant that Harshankar, who lived for several months after Gaurishankar's death and died in June 1903, did not lay any claim to the properties left by Gaurishankar which he could undoubtedly have done if the family was joint.

145.  In my opinion, the facts of this case establish beyond doubt that there was a separation between Gaurishankar and Harshankar and on the death of Gaurishankar—the family having ceased to be joint long before—his properties devolved under the law of succession, and there was no question of their passing by survivorship to any coparcener.

146. The question now arises, that assuming there was severance of the joint estate by reason of the acts and conduct of Harshankar, how could Gaurishankar acquire title to the properties which were possessed on his behalf by his Manager or the Court of Wards Under the Hindu law, he was not entitled to any share in the property so long as lunacy lasted. He was admittedly a lunatic in 1874 when Harshankar effected a severance in the family status and remained a lunatic till the day of his death. If a partition were to take place in accordance with Hindu law between the two brothers, it would be, as said already, a mere notional partition and the entire property would remain in Harshankar. There was further no decree of court in the present case allotting any property to Gaurishankar, nor could we conceive of any agreement between the two brothers on the basis of which the division of property was made. Gaurishankar being a lunatic could not possibly be a party to any such agreement. Harshankar certainly intended that half share of the property should go to his brother and he did not object to the Manager's taking possession of that half share on behalf of the lunatic, but would that be sufficient to clothe Graurishankar with any legal title It is conceded on behalf of the respondents that Gaurishankar could not acquire any title under the Hindu law which denies a lunatic any share in the property. As I have said just now, no title, on the basis of contract, can possibly be put forward. I cannot also accept the suggestion thrown out in the course of the arguments by the learned Advocates for the respondents that from the facts of this case, it could be inferred that Harshankar made a gift of half share of the property to his lunatic brother, although the latter had lawfully no claim to it. Apart from the question whether a Mitakshara coparcener is competent to make any alienation of joint property by way of gift, it seems to me that an intention to make a gift was totally absent in the present case; nor could a transaction by way of gift be spelt out from the facts which I have already enumerated.

147. The High Court seems to have been of opinion that the acts and conduct of Harshankar manifested an intention to renounce his title in favour of his brother in respect to a half share of the property in which his brother would have an enjoyable interest if he were not under any disability. I cannot accept this view as sound. As the Privy Council held in Alluri Venkatapathi Raju v. Dantuluri Venkatanarasimha, a renunciation by a coparcener merely extinguishes his interest in the joint estate. If he does not want any share, he may give it up in favour of all the remaining coparceners and walk out of the property altogether. There cannot be any renunciation in respect of a part of the joint estate. On the facts of the present case it appears that there was no renunciation on the part of Harshankar. Harshankar wanted a division of status and also a division of the estate. The division of the properties was not certainly in accordance with law. Either Harshankar was labouring under a misapprehension of law and erroneously believed that Gaurishankar was entitled to a share or he acted in contravention of law with the deliberate object of giving Gaurishankar a share in the property, to which, as a lunatic, he could not lawfully lay any claim.

148. It was argued on behalf of the respondents that this division, though not in accordance with law, might be supported as a family arrangement. It is undoubtedly settled law that when there are family disputes or differences of opinion actually in existence or likely to arise in future and the parties effect a settlement of their rights with full knowledge of the facts, equity will not grant relief against a mistake made by the parties or any one of them as to their legal rights or as to the legal consequences of the acts . This case, however, was never made in any of the courts below and possibly could not be made in view of the fact that a lunatic could not be a party to an agreement or compromise of doubtful claims.

149. To me it seems that it is really immaterial whether Harshankar acted deliberately or in ignorance of his legal rights. Assuming that such ignorance is not ignorance of law but of facts according to the dictum of Lord Westbury in Cooper v. Phibbs, the position remains exactly the same whether the act was deliberately or ignorantly done. If Harshankar did something which he was not legally bound to do, it was certainly open to him to resile from the transaction and treat it as not binding on him. But he could do so only within the period prescribed under the law of limitation and not after that. There could be no doubt that he had intended that Gaurishankar should hold the half share of the joint estate as a separate property. The severance was complete and there was no longer the relationship of co-owners between the two brothers. From the moment of separation, the possession of Gaurishankar was adverse to his brother. Harshankar, if he liked, could have claimed back possession of the properties within a period of 12 years from that date; but after that period was over, Gaurishankar acquired an indefeasible title to the properties and Harshankar's rights were totally extinguished. In my opinion, Gaurishankar Prasad acquired title by adverse possession with regard to all the properties which were put in possession of his manager in the year 1874. Some of these properties, as has been already stated, were the subject-matter of litigation between the manager of Gaurishankar and the transferees from Harshankar, and a title in these properties did certainly accrue in favour of Gaurishankar by reason of the decisions of the courts in these cases which were conclusive between the parties. Further, it is not disputed that Gaurishankar acquired by purchase a title to the 79 villages which were transferred to him by Harshankar in 1897 and to all the other properties which were sold in execution of decrees against Harshankar and were subsequently purchased by the Court of Wards on behalf of Harshankar. This is how, in my opinion, Gaurishankar acquired a title to the entire Anapur Estate.

150. The next matter for our consideration is whether the marriage of Gaurishankar with Jodha Kunwar was a valid marriage in law which gave the latter the rights and status of a lawfully wedded wife. If, as the appellants contend, the marriage was void altogether, the property of Gaurishankar could not devolve upon Jodha Kunwar but would go to Harshankar as the nearest heir in the line of succession.

151. As has been said already, Gaurishankar was adjudicated a lunatic by the District Judge of Allahabad in the year 1874 and the evidence shows that in or about 1875 he was married to Jodha Kunwar. In the trial court the plaintiffs went so far as to say that the marriage was a sham thing altogether and that none of the rites and ceremonies of marriage including the ceremony of “seven steps” were performed at all. This position was abandoned when the appeal came up for hearing before the High Court and Mr. Das, the senior counsel for the plaintiffs, conceded that the formalities of marriage were gone through and he attacked the validity of the marriage only on the ground that even under the Hindu law, there could not be a legal marriage with a lunatic who is incapable of expressing his consent.

152. It cannot be disputed that none of the early Smriti writers have mentioned lunacy as a disqualification for purposes of marriage, though insanity and various other physical and mental ailments are sufficient grounds for excluding a person from inheritance.

153. There are express texts in Manu, and Yagnavalkya, which lay down that the Aurasa and Khettraja sons of a disqualified person are entitled to share in the inheritance, provided they are themselves free from defects. These texts, which have been quoted and relied upon by all the leading authorities of the different schools of Hindu law that obtain in India, apparently imply that lunatics and similar other disqualified persons are competent to marry. There is undoubtedly a body of opinion which interpret these passages as being applicable to cases where these defects arise subsequent to marriage. In the latest edition of Mayne's Work on Hindu Law, the opinion of Medatithi, the well-known commentator of Manu, has been referred to along with other authorities in support of the view that impotent persons and lunatics are not entitled to marry . It should be noted that the demarcation between moral and legal precepts in Hindu law is a thin one and this is particularly so on questions of marriage which has been dealt with by the Smriti writers as appertaining to Achara (rituals) and not to Vyavaharn (law proper). There is an exhortation in Manu that:—

“It is better that the damsel, though marriageable should stay at home till her death than he (the father) should ever give her in marriage to a bridegroom void of excellent qualities”.

154. Nobody can contend that as a matter of law marriage with a bridegroom devoid of good qualities is invalid.

155. There could be no doubt that the marriage of a lunatic is reprehensible both from the moral and social point of view; the only question is whether such marriages are to be regarded as wholly void irrespective of the degree of insanity that is present in a particular case. I agree entirely with the view expressed by Sir Grurudas Banerjee in his Tagore Law Lectures on Marriage and Stridhan, that even considering Hindu marriage to be entirely a sacrament, as the acceptance of the bride is a necessary and indispensable part of the ceremony, he, whose loss of reason is complete, should be deemed incompetent to accept the gift of the bride. Such marriage would not be a proper marriage at all and it could be regarded as invalid on the ground that the capacity for performance of the essential ceremony of the marriage was lacking in the bridegroom.

156. There are undoubtedly various degrees of insanity and the fact that a man has been adjudicated a lunatic may mean and imply that he is not competent to manage his own affairs, but it does not necessarily show that he suffers from complete mental aberration. He may have sufficient amount of reason still left in him which would enable him to understand the ceremonies of marriage and take an intelligent part in them. This view finds full support from the decision of the Judicial Committee in Mouji Lal v. Chandrabat . This appeal arose out of certain applications for letters of administration to the estate of one Ishriprasad and the controversy centered round the point as to whether Ishriprasad's marriage with one Gririjabati was invalid by reason of Ishriprasad's insanity at the time of marriage. The District Judge held the marriage to be void primarily on the ground that Ishriprasad was so mad as not to know that he was being married and that he was even incapable of uttering the mantras. On appeal to the High Court this decision was reversed by Pargiter and Woodroffe, JJ. Pargiter, J., who delivered the main judgment, expressly held that the mental condition of Ishriprasad was not such at the time of marriage as to render him incapable of understanding the ceremony of accepting the bride and assenting to the marriage. Great reliance was placed by the learned Judge upon the facts that for a considerable period of time after the alleged marriage, the parties were recognised by all persons concerned as man and wife and so described in important documents and on important occasions. On appeal to the Privy Council the Judicial Committee entirely concurred in these views. Sir Arthur Wilson in delivering the judgment of the Board observed as follows:—

“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.”

157. In the case before us, the trial Judge has definitely found that there is no clear evidence to show that at the time of his marriage Gaurishankar was suffering from mental infirmity of such a character as to make him incapable of understanding what he was doing. The decision on this point was affirmed by the High Court and Collister, J. referred in this connection to the observations made in his judgment by the learned Subordinate Judge who decided Suit No. 714 of 1876 and who had the opportunity of seeing Graurishankar before him.

158. Mr. Somayya assailed the propriety of this finding on the ground that both the courts below had misplaced the onus of proof. His contention is that as Graurishankar was adjudicated a lunatic after proper inquisition, the burden of proving that he had any amount of sanity left in him would be upon the party who makes such assertion. I do not think that this is the correct view to take. The adjudication order may show prima facie that the person adjudicated was not competent to manage his own affairs, but it would not prove, without any express finding to that effect, the exact degree of mental infirmity that the lunatic was suffering from. Quite apart from this, both the courts below have referred in this connection to the voluminous evidence on the record which goes to show that ever since the day of marriage Jodha Kunwar was treated and regarded as a wife of Gaurishankar by all the members of the family. She was so described in a large number of official documents and revenue registers and even Harshankar in his deed of adoption tacitly recognised her position as wife of Gaurishankar when he hinted at the possibility of Gaurishankar's getting a son in future. As the Privy Council pointed out in the case mentioned above, these facts should raise an extremely strong presumption regarding the validity of the marriage and the burden of rebutting such presumption would be upon him who asserts that the marriage is not valid. In my opinion, the courts below have taken a correct view on this point and I have no hesitation in holding that Jodha Kunwar was a lawfully married wife of Gaurishankar.

159. In view of what I have said above, the points arising under the third head scarcely require any discussion. On the question of limitation, as I have stated already, the possession of Gaurishankar with regard to the properties which were taken possession of by his manager should be deemed to be adverse from the time that possession was taken, and consequently Gaurishankar must be held to have acquired title to these properties after the lapse of 12 years from 1874 and the plaintiffs' suit is barred under article 144 of the Limitation Act. As the title was perfected during Gaurishankar's lifetime, Jodha Kunwar would be the rightful heir after Gaurishankar's death. The possession of the Court of Wards under s. 42 of the Court of Wards Act, if it is deemed to be possession of the
 rightful owner, cannot but be regarded as possession on behalf of Jodha Kunwar. The point raised on behalf of the appellants that Jodha Kunwar's possession did not become adverse till 1920, therefore, becomes immaterial. I desire to point out in this connection that article 127 of the Limitation Act, which was relied upon by the High Court in aid of the defendants' case, has no application to the facts before us. Article 127 postulates the existence of a joint family and total exclusion from joint property of a person who claims to share therein. In the circumstances of this case when there was a separation already, Harshankar could not possibly have filed a suit claiming to share the property possessed on behalf of Gaurishankar either jointly with him or even by way of partition. In my opinion, article 144 is the proper article to be applied to the facts of this case and article 127 is totally inappropriate.

160.The question of res judicata is of minor importance, but I would like to point out that the High Court is not right in holding that the decisions in the suits of 1876 and 1877 which were fought out between Dalthamman, the manager of the lunatic, and the various creditors of and transferees from Harshankar operated as res judicata not only in respect to the properties which were in dispute in those suits but also in respect of the entire estate. Harshankar was only a pro forma defendant in these litigations and no relief was claimed against him. Moreover, he had already parted with his interest in the properties which were the subject-matter of these suits and had no interest subsisting in him at the time when the suits were instituted. In the suits where both he and Gaurishankar were co-defendants, there was no conflicting interest between them in existence at the time which it was necessary for the court to adjudicate upon for the purpose of giving relief to the plaintiffs. In the suits where Gaurishankar figured as a plaintiff, the larger question was not directly and substantially in issue between the two brothers. It was said by Vice-Chancellor Knight Bruce in Barrs v. Jackson-

“The rule against reagitating matters adjudicated is subject to this general restriction—that however essential the establishment of particular facts may be to the soundness of the judicial decision, however it may proceed on them as established and however binding and conclusive the decision may be as to its immediate and direct object, those facts are not all necessarily established conclusively between the parties, and that either may again litigate them for any other purpose as to which they may come in question; provided the immediate subject of the decision be not attempted to be withdrawn from its operation, so as to defeat its direct object.”

161. The intermediate subject of these decisions was the particular properties in respect to which the suits were brought. They could not certainly be withdrawn from the operation of the decisions but no greater effect can be attached to him.

162. The only other point that has been canvassed before us is whether the present suit is barred under Section 233(k) of the U.P. Land Revenue Act. This argument applies only to the properties with respect to which there were perfect partitions under the revenue law. The separate Mahals created in the name of Harshankar ultimately vested in Gaurishankar by purchase either from Harshankar directly or from his transferees. On behalf of the appellants it is argued that Section 233(k) of the U.P. Land Revenue Act would not be a bar when the actual partition is not sought to be disturbed but a question of title is raised which was beyond the competence of revenue authorities to investigate. The question is of some importance and involves consideration of a large number of decided authorities, some of which are pronouncements of the Judicial Committee. As the plaintiffs' suit fails on other and more substantial grounds and this plea of bar under Section 233(k) of the Land Revenue Act affects only a small number of properties, I deem it proper not to express any final opinion upon this point in this appeal.

163. The result is that the appeal fails and is dismissed with costs.

164. Mukherjea, J.:—In view of the decision in Civil Appeal No. XLI of 1948, this appeal must also stand dismissed. It is not disputed that the points for consideration in this appeal are exactly the same as in Appeal No. XLI of 1948 and in fact this appeal arises out of a suit which is in the nature of a cross suit filed by the respondents as plaintiffs against the appellants in respect of the one item of property known as Deoki Nandan ki Haveli situated at Banaras and appertaining to the Anapur Estate. The trial court dismissed the suit but in appeal the judgment was reversed. As we have found that the entire Anapur Estate vested in Gaurishankar Prasad and devolved after his death upon his widow Mst. Jodha Kunwar, the plaintiffs-respondents as the nearest reversioners of Gaurishankar Prasad must be held entitled to the property in suit. The result is that the decision of High Court is affirmed and this appeal dismissed with costs.