Jwala Prasad, J.This appeal arises out of a suit for declaration that the plaintiff, Baikuntha Nath Barpanda, is alone entitled as a sole survivor of the joint Hindu family and that the defendants have no right thereto.

2. The property in dispute consists of two villages, Bisipali and Tumersingha. The entire village Tumersingha and one anna four-fifth pie of Bisipali along with other properties belonged to one Kasinath. Kasinath died leaving two sons Baghunath and Chaitan. Raghunaths sons were Parikshit, Judhistir, Chandrashekhar, Sadananda, Parmananda and Baikunatha Sarpanda. Parikshit died without any issue, Judhistir died leaving defendant No. 1 his widow, Chandrasekhar died leaving Madhusudan, defendant No. 2, his son, and Parmanand died leaving defendant No. 4, Musammat Janakpriya, his widow, Parikshit, the eldest son of Raghunath, separated from the family 30 years ago. In the year 1898 Chandrashekhar, the third son, brought a suit for partition against his father, Baghunath, and his brothers and obtained a decree for partition. In 1905 Parikshit, after separation, sold his five-annas four pies share in Mouza Tumersingha to Raghunath and to Raghunaths brother, Chaitan, who had also separated from Raghunath. On the 17th of May 1907, Sadananda, the appellant before us, executed a deed of separation, where be admitted that he got one-fifth of 8 annas share of Mouza Tumersingha and one fifth share of Mouza Bisipali and other properties Thereafter, the second brother Judistir died. Raghunath died on the 22nd of April 1917, Parmananda died on the 22nd of February 1918 and Chandrashekhar died in June 1918.

3. The plaintiffs case is that after the separation of some of the brothers, as stated above, be along with his father, Raghunath, and his brother, Parmarjanda, continued to live as members of the joint Mitakshara family and after the deaths of his father and brother be is now the sole surviving member and is entitled to succeed to the property, by the law of survivorship, to the exclusion of the other members of the family, the heirs of his deceased brothers, who had already separated during the lifetime of his father, Raghunath, and his brother Parmananda. The defendants filed separate written statements resisting the claim of the plaintiff. The defendant No. 3, Sadananda, who is the appellant before us and who had executed a deed of separation in 1907, admitted in hip written statement that he got one fifth chare of the family property, but he denied that the family ever separated and alleged that even after the execution of the said deed he Remained united with his father, Raghunath, and his other sons till about a year before the death of his father. He further alleged that the property in dispute remained joint property of his father, Raghunath, and his other brothers and that it is still the joint property of the plaintiff and the defend, ants. In short, he impugned the aforesaid deed of partition executed by him, stating that it never same into operation and was only a paper translation He said that, in site of the several deeds and transactions resulting in the separation of some of the sons of Raghunath from the family, all his sons continued to be joint and to be in possession of the property jointly and not in separate shares. The other defendants raised rather a more definite and clear plea, namely, that the separation of some of the be others at different times treated a disruption and separation of the family property and that in spite of the fast that the plaintiff and Raghunath continued to live jointly, the family in law should be considered to have been separated and that the incidents of a joint Mitakshara family will not apply. In short, their case was that after the death of Raghunath all of them, as also the heirs of several sons of Raghunath, were entitled to a share in the property left by him, as If he died in a state of separation.

4. The Munsif overruled the contention of the defendants and held that, in spite of the separation of some of the members of the family, the plaintiff, his brother Parmananda and his father Raghunatn continued to be members of a joint Mitakshara family; that the plaintiff is the sole survivor of the joint family and that the entire property in dispute went to the plaintiff on the death on Raghunath and Parmananda; and that the heirs of the other sons of Raghunath did not inherit the property in dispute. Accordingly, the Munsif decreed the suit of the plaintiff in toto. Against this dearee, three appeals were filed, one by Sadananda, defended ant No. 3, and the other two by other defendants, The appeal of Sadananda was numbered 36. All these appeals were disposed of by the Subordinate Judge by his decision, dated the 10th of November 1919. Sadananda alone now somes to us in second appeal from the decision of the lower Appellate Court.

5. The appellant in the present appeal raises the question adverted to above, namely, that the separation of the several descendants of Raghunath resulted in the complete disruption and separation of the joint family and that Raghunath must be deemed to have died in a state of separation. This was the plea taken by the other defendants and was urged before both the lower Courts by these defendants. It appears from the judgment of the lower Appellate Court that the contention of the appellant before that Court was on the line of the plea taken in his written statement, that the deed of partition executed by the appellant in the year 1907 was a paper transaction, that he continued to be a member of the joint family and that there was never any separation of the family or disruption thereof. This plea was overruled by both the Courts below. The plea of the other defendants as set forth above, resting upon the question of law as to the effect of the separation of some of the members of the family, was also overruled. The result was that all the three appeals were dismissed.

6. The appellant before us now does not rest his case upon the plea taken by him in his written statement, but adopts the line of argument taken by the other defendants. In fact, it is difficult to understand the plea taken by the appellant in the written statement. Be that as it may, that plea has been set at rest and we are no longer concerned with that, as the appellant does not press it before us. Although the contention of the appellant now before us is a borrowed one, we have to consider it as being a law point arising upon the pleadings in the case and upon the evidence given by the parties, particularly the documentary evidence of separation. The question raised is not free from difficulty. The system of a joint family and the rules of secession governing that family is a peculiarity of the Hindu Law of the School of Benares. The rule of secession is known as one of survivorship, where no member has any definite or defined share and, therefore, cannot transmit it to his heirs, but a member who dies or some how or other ceases to be a member of the family causes no change in the statue of the family. The properties owned by the joint family continue to be owned by the surviving members thereof after the death or catenation of one member of it. If once the shares of the family in the property belonging to it are ascertained and defined, the family ceases to be a joint family under the Mitakshara, in spite of there being no division by metes and bounds and in spite of the members continuing to live in commensality. Such an intention of separation among the members of the family and the definition of their shares in the family property may be either by deed or may be evidenced by the conduct of the parties. In either case, it will be the intention of the parties that will determine whether they realist have separated themselves or not. This was laid down by his Lordship the Right Honble Sir James W. Colvile while pronouncing judgment in the case of Boorga Perihad v. Kundun Koowar 1 I.A. 55 : 13 B.L.R. 235 : 21 W.R. 214 : 8 Sar. P.C.J. 341 in the following words: The fair inference from the decision seems to their Lordships to be, that inasmuch as there may be a division of the kind there spoken of, viz., a division which, though not carried out by a partition by metes and bounds, would, nevertheless, alter the status of the family, the question in every particular case must be one of intention, whether the intention of the parties to be inferred from the instruments which they have executed and the acts they have done, was to sect such a division."

7. Lord Davey, in the case of Balabux v. Rukhmabai 30 C. 725 : 30 I.A. 130 : 7 C.W.N. 642 : 5 Bom. L.R. 469 : 8 Sar. P.C.J. 470 , observed as follows:

It appears to their Lordships that there is no presumption when one Co-parcener separates from the others, that the latter remain united In many cases it may be necessary, in order to ascertain the share of the outgoing member, to fix the shares which the other co-parceners are or would be entitled to, and in this sense the separation of one is said to be a virtual separation of all. And their Lordships think that an agreement amongst the remaining members of a joint family to remain united or tore-unite must be proved like any other fact.

8. The evidence in that case relating to the intention of the other co-parceners to remain united or to reunite was looked into and the decision upon the evidence of the Judicial Commissioner was given effect to by their Lordships of the Judicial Committee. Lord Davey gave expression to the same view latterly in the case of Balkishen Das v. Ram Narain Sahu 30 C. 738: 30 I.A. 139 : 7 C.W.N. 578 : 5 Bom. L.R. 461 : 8 Sar. P.C.J. 489, where be observed: "Their Lordships do not find it necessary to express an opinion on this point, because, in the case before them, there is no proof of an intention of the parties to re-unite in estate and interest. Indeed, there is not wanting evidence independently of the ehrarnama, and both before and after its execution, of on intention to separate their interests."

9. Mr. Ameer Ali in the case of Girja Bai v. Sadashiv Dhundiraj 37 Ind. Cas. 321 : 43 C. 1031 : 20 C.W.N. 1085 : 14 A.L.J. 822 : 20 M.L.T. 78 : 12 N.L.R. 113 : (1916) 2 M.W.N. 65 : 18 Bom. L.R. 621 : L.W. 114 : 24 C.L.J. 207 : 31 M.L.J. 455 : 43 I.A. 151 held that "separation from the joint family, involving the severance of the joint status so far as the separating member is concerned, with all the legal consequences resulting therefrom, is quite distinct from the de facto division into specific shares of the property held until then jointly. One is a matter of individual decision, the desire on the part of any one member to sever himself from the joint family and to on joy his hitherto undefined or unspecified share separately from the others without being subject to the obligations which arise from the joint status, whilst the other is the natural resultant from his decision, the division and separation of his share, which may be arrived at either by private agreement among the parties or on failure of that by the intervention of the Court. Once the decision has been unequivocally ixptessed and clearly intimated to his co-sharers, his right to obtain and possess the share to which he admittedly has a title is unimpeachable; neither the co-sharers can question it nor can the Court examine his conscience to find out whether his reasons for separation were well-founded or sufficient; the Court has simply to give effect to his right to have his share allocated separately from the others."

10. In the case of Ranganatha Rao v. Narayanasami Naicker 31 M. 482, it wan held (Miller and Abdur Rahim, JJ.) that "there is no presumption of a general division among all the members of a an parcenary from the fast that one of its members his separated."

11. This view was arrived at on the construction and interpretation of the Privy Council base of Balabux v. Rukhmabai 30 C. 725: 30 I.A. 130 : 7 C.W.N. 642 : 5 Bom. L.R. 469 : 8 Sar. P.C.J. 470 .

12. In the present case the evidence as well as the finding of the Courts below is that some of the sons of Raghunath from time to time separated from the joint family and took shares in the family property and that the remaining members of the family, consisting of the plaintiff, his brother Parmananda and his father Raghunath, continued to be members of the joint family. There was no express deed of agreement executed between the aforesaid persons to remain united or to re unite. It is, therefore, contended on behalf of the appellant that in the absence of such an agreement it mast be presumed that there was a complete separation among all the members of the family and that Raghunath died in a state of separation. The point arose directly hi the case of Anandibai v. Hari Suba Pal 10 Ind. Cas. 911 : 35 B. 293 : 13 Bom. L.R. 287, where out of six co-parceners in a joint Hindu family, three separated, under a deed of partition, from the rest, who continued joint as before. It was found in that case, as in the present case, on evidence.

that the last three persons either continued as before to be co-parceners or they must be held as having immediately re-united with each other after execrating the deed of partition.

13. The contention against the aforesaid finding was overruled by Chandravarkar, J., who delivered judgment of the Court on the ground that upto the findings in the case and circus antes it must be held:

that the co-parceners agreed to effect not a template but partial disruption of the co-parcenary, that, in other words, three of them separated from the rent and also inter se and that the latter agreed to continue joint.

14. It was further observed "that the finding of the Court below set aside the law enunciated by the Judicial Committee of the Privy Council in the case of Balabux v. Rukhmabai 30 C. 725 : 30 I.A. 130 : 7 C.W.N. 642 : 5 Bom. L.R. 469 : 8 Sar. P.C.J. 470 ." No doubt, after separation of one of the members the presumption of jointness is destroyed and the fact that the res of the members continued to reducing united must be proved by the party who sets up the re-union. In effect on the finding of the Courts below the plaintiff has proved it. Carefully considering the finding of the Courts below, it is difficult to differentiate it from the facts found, as observed above, in the case of Anandibai v. Hari Suba Pai 10 Ind. Cas. 911 : 35 B. 293 : 13 Bom. L.R. 287, It must, therefore, be held that there was a partial partition and that the intention of the remaining members of the family, consisting of the plaintiff, his brother and his father, was cismontane to be members of the joint Mitakshara family.

15. Then, what was the effect of the re-union or continued jointness The Mitakshara has adopted the rule (Chapter 11, Section IX, Rule 8) laid down by Brihaspati that re-union cannot take place with any person indefinitely but only with a father, a brother, or a paternal uncle. The plaintiff, his brother Parmananda and his father Raghunath were, therefore, entitled under the aforesaid rule to continue to be joint or to re-unite. It is also clear from the text that the plaintiff being the sole surviving member, was entitled to succeed in preference to the separated brothers and their children. This has been made clear by the discussion by Mukerji, J., in the case of Ramhari Sarma v. Trihiram Sarma 7 B.L.R. 336 : 15 W.R. 442, and also by the decision in the case of Abhai Churn Jana v. Mangal Jana 19 C. 634 : 9 Ind. Dec. 865. Vide also the following observation of their Lordships of the Judicial Committee in the case of Prankishen Paul Chowdry v. Mothooramohun Paul Chowdhry 10 M.I.A. 403 : 5 W.R.P.C. 11 : 1 Suth P.C.J. 609 : 2 Sar. P.C.J. 164 : 19 E.R. 1025, "on the re-union of the two brothers, which of itself remitted them to their former status, as members of a joint Hindu family, it was expressly agreed that those acquisitions which the elder brother had made whilst the separation continued should all go into the joint fund."

16. Therefore, even according to the special role laid down by the Hindu Law for cases in which separation once takes place and then afterwards co-paraeners through affection re-unite and there takes place an entire unity of interest among them.

17. A re-united co-parcener shall take the heritage in preference to, and in utter exclusion of, a separated claimant but of an equal degree, whether brothers of the whole or half blood or sons of such brothers or uncles."

18. The plaintiff is entitled to succeed in preference to the defendants, to the property in dispute.

19. The result is that the view taken by the Courts below is compared with and the appeal must be dismissed with costs.

Ross, J,

20. I agree.