1. This appeal and the connected First Appeal No. 231 of 1906 See 7 Ind. Cas. 908, infra arise out of a suit brought by Musammat, Duni Knar for possession of property which she alleged she had inherited from her son Gurdyal. She was the widow of Tewari Jwala Prasad who died in 1869, leaving him surviving his Widow Duni Kuar, two sons Kalka Prasad and Gurdyal, and a daughter Laraiti Knar who is one of the appellants in the connected Appeal No. 231. Jwala Prasad was one of the three sons of Kushal Singh, the other sons being Daryao Singh and Umrao Singh. Daryao Singh had a son Jaswant Singh but with his branch of the family we are not concerned in this appeal. Umrao Singh's son was Gandharp Singh and it is asserted by the appellant Jwala Prasad that he was adopted to Gandharp Singh. In first appeal No. 173 of 1908, decided on the 15th of December, 1909, we held for the reasons stated in the judgment in that case, that Jawala Prasad was validly adopted. For the same reasons we hold in this case that he was so adopted and must be treated as the adopted son of Gandharp Singh. Of the sons of Tewari Jawala Prasad, Kalka Prasad died on the 23rd of April, 1893, leaving a widow Janki Kuarwho is the principal defendant in this case. Gurdyal Singh died about 4 months afterwards, that is, on the 7th of August, 1893, his widow Musammat Raniji died in 1899. The pedigree of the family is thus set forth in the judgment of the Court below:
KHUSHAL________________|__________| | |Jawala Prasad Daryao Umrao=Duni | || Jaswant. Gandhrap| || Jawala Prasad,| adopted.____|____________________| | |Kalka Sarsuty, Gurdial=Janki. daughter. =Raniji.
2. The suit which has given rise to this and the connected appeal was brought by Duni Kuar on the allegation that the two brothers Kalka Prasad and Gurdyal Singh were members of a joint family; that upon Kalka Prasad's death Gurdyal by right of survivorship succeeded to the whole of the property; that after his death his widow inherited it and upon the widow's death she, Duni Kuar, as his mother inherited it. She asserts that Janki Kuar had no interest in the said property and that she is in unlawful possession of a half share. Duni Kuar accordingly prayed for a declaration that Gurdyal and Kalka Prasad were members of joint family and that she is by right of inheritance to her son Gurdyal the owner of that property and she claimed possession of a half share of the property now in the possession of Janki Kuar The plaint contains an allegation to the effect that if it was found that a partition had taken place between the brothers, she as the mother of the two brothers obtained a third share under the partition and was, therefore, entitled to recover from the defendant Janki Kuar, a sixth share of the property being the difference between a third share and a fourth share of which she, Duni Kuar was in possession. Accordingly in the alternative she claimed possession of a sixth share. There were other prayers in the plaint to which we need not refer for the purposes of these appeals.
3. The Court below held that the two brothers Kalka Prasad and Gurdyal were separate, that Janki Kuar inherited a half share of the property being the share of her husband, that Duni Kuar got no share under partition and that her claim to a third share is not maintainable and is also barred by limitation That Court accordingly dismissed the suit on the 7th of February, 1906, Duni Kuar having died after the decision of the suit, that is on the 18th of April, 1906, this Appeal No. 73 of 1910 has been preferred by the minor Jawala Prasad and he claims as the adopted son of Gandharp Singh to be the next reversioner to the estate after Duni Kuar's death. The connected Appeal No. 231 of 1906 has been preferred by Musammat Laraiti Kunwar, the daughter of Duni Kuar, and her sons on the allegation that Duni Kuar obtained a share in the property under a partition between her sons; that the property so acquired was her .stridhan and that it passed on her death to her (Laraiti Kuar).
4. The main question in this appeal (No. 73 of 1910) is whether the two brothers Kalka Prasad and Gurdyal Singh were joint or separate. If they were joint the whole property passed to Gurdyal Singh by right of survivorship and after the death of his widow, to Duni Kuar and upon her death it will go to Jwala Prasad, the appellant who is the adopted son of Gandharp Singh and the next reversionary heir If, on the other hand, the brothers were separate the half share in dispute passed to Janki Kuar and Duni Kuar had no right to it and the appeal of Jawala Prasad must fail. For the purposes of this appeal, therefore, the only question which we have to determine is whether the two brothers Kalka Prasad and Gurdyal Singh were joint or separate.
5. The allegation on behalf of Janki Knnr is that a. separation took place between the two brothers in 1870 when an arbitration award was made and that subsequently there was an actual partition between them in 1891. The lower Court has found that there was no partition in 1891, but that under the arbitration award of the 17th of April, 1870, the shares of the two brothers were defined and it declared that this had the effect of causing a separation of the joint family. On the point last mentioned we do not agree with the learned Judge. It appears that after the death of Tewari Jawala Prasad, the husband of Duni Kuar, a reference to arbitration was made by the members of the three branches of the family of Kusbal Singh, the two sons of Jwala Prasad who were, at the time, infants in arms being represented by their mother Duni Kuar. The arbitrator, Pande Sundar Lal, by his award divided the property into three shares giving to the sons of Jwala Prasad a third share There was no division of that share between the sons of Jwala Prasad inter se. This award, therefore, had not the effect of causing a separation between the sons of Jwala Prasad. In this respect this case is similar to that of Durga Dei v. Balmakund 29 A. 93 : 3 A.L.J. 683 : A.W.N. (1906) 287. After considering the evidence, which was laid before us at length, we have come to the conclusion in concurrence with the Court below that there was no actual partition by metes and bounds between Kalka Prasad and Gurdyal Singh. We are, however, of opinion that a severance of the joint nature of the family took place within the meaning of the rule laid down by their Lordships of the Privy Council in the well-known ease of Appovier v. Rama Subba Aiyan 11 M.I.A. 75 : 8 W.R. 1 (P.C.). The evidence establishes beyond doubt that the two brothers agreed among themselves to hold their father's property in defined shares and that, therefore, the property ceased to bear the character of undivided property, although there was no actual division of it. It appears that during the minority of Gurdyal his brother Kalka Prasad was appointed his guardian. Gurdyal after attaining majority filed an application on the 12th of January, 1892, in which he stated that his minority had come to an end on the 12th of June, 1891, that he no longer required the help of a guardian and would himself look after his business, that he had taken an account of the profits of the villages from his guardian and that he had taken possession of the villages and houses to the extent of his share. (See No. :34 of the Record). On the 11th of January, 1892, Kalka Prasad tiled an application in which he stated that Gurdyal Singh had received possession of the houses and villages etc., from him after having taken an account of profits etc., and that he had now got possession of his share in every way.' These documents show that the two brothers had defined their shares and that-each of them had taken possession of his own share, although they had not actually divided the property. We further find that on the 8th of February, 1892, a deed of agreement (No. 29 C. of the Record) was executed by the two brothers and Jaswant Singh, their cousin, in which it was agreed that Kalka Prasad should take out of the income of the estate Rs. 215 and Gnrdyal Rs. 185 per mensem for their food expenses etc. We also find that when after the death of Gurdyal a suit was brought by his widow Raniji against Duni Kuar for possession of a part of the estate of her husband of which Duni Kuar had taken possession, it was stated by the pleaders of both the parties that a partition of property had been effected between Kalka Prasad and Gurdyal Raniji, the widow of Gurdyal in her plaint averred that the property of Gurdyal was separate and that he was a separated member of the family Duni Knar also in her written statement (para 2) admitted the partition but asserted that she had got a third share under it It appears further that Kalka Prasad, and after his death his widow, his sister-in-law, and his mother dealt with the property as if it were separate property and not as the property of a joint undivided family. The evidence on the point is fully summarised in the judgment of the learned Judge and it is not necessary for us to refer to it in further detail. We hold in concurrence with the Court below that there was a severance of the joint family sometime prior to 1892 and that the two brothers, Kalka Prasad and Gurdyal had before their death ceased to he members of a joint Hindu family within the meaning of the Hindu Law. Although there was no actual division of property between the brothers, there was such a division of right and change in the status of the family as created a severance of the joint family and put an end to the right of survivorship. The appeal therefore, fails. We accordingly dismiss it with costs including fees on the higher scale.