Edge, C.J. and Tyrrell, J.
1. This was an appeal from the decree of the District Judge of Jaunpur, who held on appeal that there had been separation in fact in this Hindu family. The defendants were grantees from one Hazari Lal. If there had not been a separation, the plaintiffs would be entitled to a decree. If there had been separation the gift to the defendants was unimpeachable. The Judge of Jaunpur appears to me to have correctly apprehended the law as to separation and to the inferences which may be drawn as to separation. The property in dispute was a two annas share out of a four annas share in the village. The four annas share had been since 1844 in the hands of mortgagees, who had held it under a zarpeshgi lease, which had been renewed from time to time. The last lease was granted on the 23rd July 1871. We are informed that in consideration of such renewals further sums were borrowed. It has been contended before us that inasmuch as there could have been since 1844 no separate enjoyment of the four annas share of the mortgaged property, the evidence afforded by the separate registration could not prove actual separation. I may mention that there was the evidence of Hazari Lal, who said he had separated; that evidence, if believed, would be sufficient.
2. The point which has been pressed on us was based on a judgment of this Court in the case of Ambika Dat v. Sukhmani Kuar I. L. R., 1 All., 437. Mr. Justice turner in delivering the judgment of the Court said: 'The fact that there was a definement of shares followed by entries of separate interests in the revenue-records in some estate only is an important piece of evidence towards proving separation of title and interests, but it will not necessarily amount to such separation; it must be shown that there was an unmistakable intention on the part of the share-holders to separate their interests, and that the intention was carried into effect. The best evidence is separate enjoyment of profits and dealings with the property.' It has been assumed in the argument on behalf of the appellants that the meaning of that judgment is that in no case can separation be found unless there is evidence of a separate enjoyment of profits. We do not think that is the meaning of the judgment. In fact, in the passage quoted, the learned Judges say: 'a definement of the shares followed by entries of separate interests in the revenue-records in some estate only is an important piece of evidence towards proving separation.' From evidence of that kind, in our judgment, if there is nothing to explain it, separation as to the estate in respect of which there has been a definement of shares followed by entries of separate interests in the revenue-records may be inferred. If the case now before us had been before those learned Judges, they would probably have so worded their judgment that no one might infer that in all cases proof of separate enjoyment of profits was absolutely necessary. To hold that there could be no separation proved in the case of property in the hands of mortgagees unless proof could be given of separate enjoyment, would be to hold that a joint family whose sole property was in the hands of mortgagees could not, during the currency of the mortgage, effect or prove separation. We think that the learned Judges in the case to which we have referred were only dealing with the case before them, and did not intend to lay down rules of universal and exclusive application. This is a second appeal, The Judge in our opinion has shown by his judgment that he perfectly understood the law.