1. This, second appeal has been referred to a Bench of two Judges because the learned Judge before whom it came thought that there was some conflict between two cases decided by this Court, namely Ram Kishan Das v. Tunda Mal  38 All. 677 and Kundan Lal v. Shankar Lal  35 All. 564.
2. The facts of the case as found by the Court below are those: One Ghurao was a tenant holding the fixed rate tenancy, one-half of which is in dispute in this suit. On 26th July 1913 he made a gift of one-half of it to the plaintiff-appellant Swarath, who was a son of his wife's brother. The other half he gave to his daughter Mt. Lotania. The daughter's half-share went by inheritance to her son and on the death of the son the property was inherited by the father the husband of Mt. Lotania, Jhinguri. On 13th June 1919, Jhinguri sold this half-share in the tenancy to plaintiff's brother Gobardhan, the late husband of respondent 1 Mt. Ghurki. The other defendants in the suit are transferees from Mt. Ghurki. The plaintiff-appellant claimed the half-share in dispute on the ground that his brother Gobardhan died joint with him and by right of survivorship he is entitled to the property in question. The defence was that Gobardhan died separate and the property in suit was his self-acquisition.
3. The Court of first instance decreed the suit. On appeal the learned Subordinate Judge dismissed it. The learned Subordinate Judge found that although the two brothers Swarath and Gobardhan lived together there was no nucleus either of ancestral property or of joint family property and that therefore there was no presumption that the property acquired by Gobardhan was joint family property in his hand. The learned Judge also found that Gobardhan used to go out to Calcutta to earn a living and it was possible that with the savings he was able to purchase the property in question.
4. In this Court it has been contended that the learned Subordinate Judge has overlooked the presumption of Hindu law that the property held by a member of a joint Hindu family is joint property and that if this presumption be given its proper effect to, the suit should be decreed.
5. The learned Counsel for the appellant has further contended that there is a real conflict between the two cases quoted at an earlier part of this judgment and he has asked that if we are also of the same opinion we should refer the case to a larger Bench.
6. We are of opinion that there is no conflict at all between the two cases, one-reported in Ram Kishan Das v. Tunda Mal and the other reported in Kundan Lal v. Shankar Lal. Indeed the learned Judges who decided the later case expressed the opinion that they were not in any way differing from the earlier case. At p. 568 of the Report Kundan Lal v. Shankar Lal, Richards, C. J. is reported to have said:
It seems to me however that it is unnecessary in the present case to express any view on the correctness of the decision in Ram Kishan Das v. Tunda Mal because I think that in the present case it is necessary for the plaintiff...
7. We are also of the same opinion. Mayne in his Hindu Law, 9th Edition, in the footnote, at p. 377, says:
The decision in Kundan Lal v. Shankar Lal is not really in conflict with the proposition in the text; for in that case it was assumed that the property though acquired in the name of a particular member was in the possession of the joint family.
8. The case before us is apparently governed by the decision in Ram Kishan Das v. Tunda Mal which lays down a law which has never been dissented from in this Court.
9. It will be interesting to look at the original texts in order to find out whether the rule that has been laid down in Ram Kishan Das v. Tunda Mal is in any way in conflict with them. Vijnaneshwara in his Commentary on the Mitakshara, in Ch. 1, Section 4 Placitum 118. (Colebrook's, Fr.) says:
The author explains that may not be divided whatever else is acquired by the coparcener himself without detriment to the father's estate as a present from a friend or a gift at nuptials does not appertain to the coheirs.
10. Then he explains:
That which has been acquired by the coparcener himself without any detriment to the goods of his father or mother or which has been received by him from a friend . . . shall not be given up to the brethren or other co-heirs the person recovering it shall taken such property. Ibid.
11. The opinion recorded by the author of the Mitakshara is really based on a text of Manu which may be translated as follows:
Whatever one has earned by his own labour without impairing the paternal estate one may not give a share of the self-acquired property to another if he so desires it
(Translated by M. N. Dutta (Shastri) M. A., and published by Elysium Press, Calcutta: see Manushmhita, Ch. 9, Sloka 288.
12. A similar idea is expressed by the next sloka in which it is laid down by Manu as follows:
A son who has managed to recover an ancestral property winch his father had failed to do in his lifetime must not divide the same among his own brothers if he does not so desire it.
13. It appears to us that the use of the word 'joint' family has been to some' extent responsible for the conception that there can be no joint family without joint property. The word that has been actually used in the Sanskrit texts, especially by the author of the Mitakshara is 'abibhakta' which means 'undivided.' A family in which the members are living together may be called an undivided family, for the simple reason that they have not separated. Where the idea of mere living together has to be expressed, the expression that has been used by Manu is ' Sahajiwantas. ' In Ch. 9, Sloka 210, Manu lays down that when divided members of a family 'live together and they decide to separate again' the eldest member of the family cannot claim the eldest member's share. The word 'joint' implies, though not necessarily, possession of some property which may be regarded as owned by all the members of the family. The word 'undivided' need not necessarily carry any such idea. Dr. Gour, in his 'Hindu Code,' Edn. 3, at p. 590, in Article 1174 says
The strength of the joint family lies in the joint family property. Without such property a joint family is conceivable, but then its jointness would have no meaning, since such family may possess certain family rights in common, but they are comparatively 'of little account. The importance of the joint family therefore lies in the fact that it possesses all its property in common, as such members have mutual rights and obligations with reference to it. But while Hindu law postulates and presumes the existence of a joint family, it does not either postulate or presume the existence of joint family property....
14. Indeed the law is now too well established to be disturbed at this late hour and it is to this effect that where there is no nucleus of ancestral property or where there is no nucleus of joint property possessed by the members of the family, any acquisition of a particular member cannot be treated as joint family property in with other members of the family have a right to share. The result is that the appeal cannot succeed and it is hereby dismissed with costs.