Wali Ullah, J.
1. This is an appeal by the plaintiff against the decree of the lower appellate Court dismissing her suit for possession and for mesne profits of some zamindari property. The relevant facts may be briefly stated:
NATHU__________|___________| |Lakhpat(defendant) Narpat| || Idharam Singh=Mt. Baghubiri| (plaintifi)_____________________| |Lal Singh Sukhrampal.
2. This pedigree is admitted by the parties. According to the plaintiff's case, Narpat died about the year 1916 leaving a son Dharam Singh who is also now dead and who was the husband of the plaintiff. On 7th February 1936, Dharam Singh made a gift (by deed Ex. 6) of 125 bighas of land (set out in Schedule A) in favour of the plaintiff. Thereafter during the mutation proceedings Lakhpat, defendant, objected to mutation in the name of the plaintiff on the ground that the property was joint family property and he was joint with Dharam Singh and consequently Dharam Singh was not competent to make; the gift in favour of his wife. It appears that on 18th June 1936 parties agreed to refer their dispute to arbitration and filed a joint application (Ex. 3) in the revenue Court to that effect. The arbitrators filed an award (Ex. 7) on 25th June 1936. It was to the effect that Mt. Eaghbiri's name was to be mutated as against 41 bighas 13 biswas (pukhta) and that Dharam Singh's name should be maintained over the rest of the property (mentioned in Schedule B). On Dharam Singh's death Mt. Raghbiri applied for mutation of her name in respect of the property comprised in Schedule B. Lakhpat Singh defendant raised objections and he was ultimately successful in the appellate Court and his name was mutated over the rest of the property, i.e., property mentioned in Schedule B. Thereupon Mt. Eaghbiri filed the suit out of which this appeal has arisen for the recovery of possession over the property comprised in Schedule B and for mesne profits. The suit was contested by the defendant on the ground that originally he, Narpat and Dharam Singh constituted a joint Hindu family and that after the death of Narpat he and Dharam Singh continued as members of a joint Hindu family and that on the death of Dharam. Singh the property came to him by survivorship. He. also alleged that the deed of gift executed by Dharam Singh in favour of the plaintiff was farzi and further that the amount of mesne profits claimed was excessive. The property in question was a part of the property which once belonged to the joint Hindu family of which Lakhpat, Narpat and Dharam Singh were members.
3. The Court of first instance after a consideration of the materials on the record found these facts : (1) That Lakhpat Singh, Narpat Singh and Dharam Singh constituted a joint Hindu family. (2) That Lakhpat Singh subsequently in the year 1926 gifted his property to his son Lal Singh. It may be mentioned here that this deed of gift was attacked on behalf of the defendant as a farzi transaction but the Court has found that the gift in favour of Lal Singh was a genuine transaction. (3) That the gift-deed dated 7th February 1936 in favour of the plaintiff was genuine. (4) That the arbitration proceedings had been properly conducted and the award was not vitiated by any fraud committed by the plaintiff.
4. In view of these findings, the Court of first instance proceeded to consider the legal aspect of the case and it came to the conclusion that in view of the two gift-deeds of the years 1926 and 1936 respectively and the award dated 25th June 1936 Dharam Singh and Lakhpat Singh (defendant) must be held to be separate. Consequently on Dharam Singh's death the property in suit came to the plaintiff by succession. As regards the mesne profits it was agreed between the parties (vide paper No. 101/A2) that if the plaintiff be held to be entitled to the property the amount of mesne profits would be Rs. 350. In view of the above, the claim for possession over the property in Schedule B as specified in the plaint and for recovery of Rs. 350 as mesne profits was decreed with proportionate costs.
5. On appeal the learned Additional District Judge came to the conclusion that it could not be inferred from the gift-deeds of 1926 and 1936 that defendant Lakhpat and Dharam Singh had separated and had cased to be members of a joint Hindu family. Further he, held that the award dated 25th June 1936 was invalid as it went beyond the scope of the enquiry pending in the revenue Court, i.e., the question of mutation, and consequently it was not binding on the parties. In view of these findings, he was of the opinion that there was no disruption of the joint status of the family of Dharam Singh and Lakhpat Singh. To quote his own words, he said:
Thus I find that there was no partition between Dharam Singh and Lakhpat and so Dharam Singh must be presumed to have died while he was joint with Lakhpat. That being the case Mt. Baghbiri is not entitled to inherit his property.
In view of these findings, he allowed the appeal, set aside the decree of the Court of first instance and dismissed the plaintiff's suit with costs of the Court of first instance. Eegarding the costs of the appeal he directed the parties to bear their own costs. In second appeal it has been strongly contended before me that the findings of the lower appellate Court are entirely vitiated in law inasmuch as it has drawn unwarranted inferences from the facts found. It is further contended that on proper inferences to be drawn from the following three incidents: (a) The deed of gift, of his son property executed by Lakhpat Singh defendant in favour of his son Lal Singh in 1926. (b) The deed of gift executed by Dharam Singh in the name of the plaintiff in 1936 and (c) the award dated 25th June 1936, which was allowed to go unchallenged, it would be clear that there was a disruption of the joint Hindu family and the Court below is entirely in error in holding otherwise. It is further contended that the view of the lower appellate Court that the award was invalid was unsustainable in law inasmuch as it was not contested at the time it was filed in Court. On the contrary the learned Counsel for the respondent has mainly relied upon the finding of the lower appellate Court that Lakhpat Singh defendant was joint with Dharam Singh at the time of his death. It has been contended that that is a finding of fact and the appeal is without any substance.
6. Learned Counsel for the respondent has invited my attention to the case in Midnapur Zemindari Co. Ltd. v. Uma Charan Mandal ('23) 10 A.I.R. 1923 P.C. 187 where their Lordships of the Privy Council have held that unless it can be shown that the first appellate Court has misdirected itself in point of law in dealing with the question of fact upon the evidence, there would be no ground for a second appeal from its decision upon the question of fact. Eeference has also been made to Wali Mohammad v. Mohammad Baksh where their Lordships have considered the scope of Section 100, Civil P.C, and have formulated several propositions which are clearly established. One of these propositions is this:
The proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been properly proved when evidence for and against has been properly admitted is necessarily a pure question of fact.
7. Again reference has been made by the learned Counsel for the respondent to the case in Secy of State v. Rameshwaram Devasthanam where their Lordships have laid down the proposition that under Section 100, Civil P.C, the High Court has no jurisdiction to reverse the findings of the fact arrived at by the lower appellate Court, however erroneous unless they are vitiated by some error of law. The rule is equally applicable to cases in which the findings of the lower appellate Court are based on inferences drawn from documents exhibited in evidence. In this case their Lordships have made a pointed reference to the case in Wali Mohammad v. Mohammad Baksh . I have considered these rulings, but to my mind they do not really assist the respondent. In the present, case there is really no dispute with regard to the findings of fact recorded by the lower appellate Court. Those findings of fact are: (1) That Lakhpat defendant executed a deed of gift in favour of one of his sons, namely Lal Singh, in 1926 whereby he gave away the whole of his share in the ancestral property; (2) Dharam Singh, a member of the other branch of the family, executed a deed in favour of his wife Mt. Raghubir in 1936, and (3) The award dated 25th June 1936 was given and in accordance with this award mutation was effected and parties acted till the present litigation started.
8. The essential question really is as to what are the proper 'inferences' which can be drawn from these facts in respect of the disruption of the joint status of the family in the present case. It has been held by their Lordships of the Privy Council in Wali Mohammad v. Mohammad Baksh referred to above, that 'the proper legal effect of a proved fact is essentially a question of law.' Furthermore in Dhanna Mal v. Moti Sagar also it has been held by their Lordships of the Privy Council that the proper effect of a proved fact is a question of law. To the same effect is the decision of a Bench of two learned Judges of this Court in Beti v. Sikhdar Singh : AIR1928All180
9. In view of the authorities mentioned above, there can, therefore, be no doubt whatsoever that the proper inferences to be drawn from the findings arrived at by the lower appellate Court which I have mentioned above is a question of law and can be considered in a second appeal. On a consideration of the entire matter and on a careful perusal of the judgment of the learned Judge, it seems to me that the inferences drawn by the learned Judge were entirely erroneous. At places in the judgment he seems to confuse the actual 'partition' effected by metes and bounds of property possessed by a joint Hindu family and 'disruption of the status of joint-ness.' In considering the three important documents, namely the two deeds and the award and their effect on this crucial question he seems to have entirely misdirected himself inasmuch as the judgment shows that he was looking for an explicit declaration, in so many words in these deeds, to the effect that the executant of the document was separate from other member of the family. lie says while referring to the deed of gift by Dharam Singh:
In the gift-deed Dharam Singh did not 'express' any intention on his part to separate himself from Lakhpat. Moreover even if there was any such intention it had not been expressed to Lakhpat.
In this connexion he makes a very significant remark in the judgment which helps the case of the plaintiff-appellant rather than that of the defendant-respondent. He says:
He had made 'no mention' in the gift-deed about his being joint with Lakhpat or about the property being joint family property; for all one knows he might have treated the property as his self-acquired property which he could give away to his wife without disrupting the joint family status.
Eeferring to the other deed of gift of 1926 he observes:
In this gift-deed also Lakhpat did not 'express any clear and unequivocal intention on his part to separate himself from Dharam Singh.
10. It seems to me that here again he misdirected himself inasmuch as he tried to see if the document, in so many words, made a declaration about separation instead of considering the real point connected with these transactions, namely, the legal effect of these transactions. There is no doubt whatsoever that as a matter of fact these transactions were effected. The learned Judge himself finds that these transactions were effected. It is quite different thing whether these transactions were valid or invalid in law. The law with regard to 'partition' and 'severance of the status of a joint Hindu family' is well settled and there are numerous cases in which it has been clearly laid down. I may mention one Mt. Ram Kali v. Khamman Lal : AIR1928All1 where a Bench of two learned Judges of this Court has considered the whole matter at length and has formulated a number of propositions which can be deduced from the decided cases. Where the question to be decided relates to the severance of status or otherwise, and there is no clear intention expressed in so many words the matter has to be decided with reference to the acts, the omissions, attitude and conduct of the parties concerned; in other words, the question is whether we can read into what Lakhpat or Dharam Singh did and into the conduct and manner of life led by them, an intention to separate from each other. In Bhagwati Saran v. Parmshwari Nandan Singh ('42) 29 A.I.R. 1942 All. 267 at page 224 it has been observed:
Severance of status among coparceners is a matter of individual volition and what we have to consider is whether we can read any such volition into the facts syid events which I have set out above.
Again, at page 223 it was observed:
What we have to decide is whether or not the acts, omissions, attitude and conduct of. can be interpreted as expressing an intention to separate; himself and in such manner that the latter acquired title in a half share of the estate.
11. Bearing in mind the settled law on the point it has to be considered as to what is the proper inference to be drawn from the; act of Lakhpat Singh in making the gift of I his portion of the ancestral property in | favour of his son Lal Singh in 1926. It is obvious that it cannot be said that this; transaction amounted in effect to a renunciation on the part of Lakhpat Singh of all his interest in the family property for the simple reason that in order to be effective as an act of renunciation it should have been made in favour of all remaining members of the joint family. Here it was an act j done for the benefit of one individual member, namely, Lal Singh. To my mind, the only legitimate inference which can be drawn from the conduct on the part of Lakhpat Singh in the year 1926 was that he treated the property dealt with to be his in 'dividual property and not joint family property. By this conduct on his part it is obvious that he exhibited a clear and definite intention to separate, assuming of course that he was joint with the other members of the family till then. Next we come to the deed of gift executed by Dharam Singh in I favour of the appellant Mt. Eaghbiri. The proper inference to be drawn from this act of Dharam Singh is again, to my mind, clear and definite. It is that Dharam Singh treated this property as the property of a I separated member of a Hindu family and I dealt with it as such. The award dated 25th I June 1936 which was acted upon during the I lifetime of Dharam Singh and never challenged by anybody shows to my mind quite I clearly that there was not only a disruption I of the family but that by means of it, the I property was actually partitioned. Leaving I aside the legal discussions with regard to the I validity or otherwise of the gift-deeds or of I the award there is no explanation what so ever from the side of the defendant-respondent as to how these various events came to happen if the family was really joint and continued to be joint till the death of Dharam Singh. The finding of the lower appellate Court on this question, as I have already indicated, is not a proper finding which can be accepted in a second appeal.
12. From what has gone before it seems to me quite clear that the proper and legitimate inference to be drawn from the facts found and admitted in this case is that the family was separate and that Dharam Singh died as a separated Hindu. It, therefore, follows that Mt. Eaghbiri, widow of Dharam Singh, succeeded to the property in dispute by succession as a Hindu widow. In view of the above, I allow the appeal with costs, set aside the decree of the lower appellate Court and restore that of the Court of first instance. Leave to appeal under the Letters Patent is refused.