1. This is an appeal by two of the defendants, Ram Narain and his son Lachhmi Narain from a final decree dated 16th August 1924, in a suit for partition of the joint family property. The property consisted of moveables, house property and zemindari shares. The three plaintiffs are the two sons and one grandson of Rameshwar Sahu and the principal defendants were Ram Narain, defendant 1, who is the appellant before us, and, Deo Narain, an insane brother of Ram Narain. The share of the plaintiffs in the joint family property was one-half and the share of the defendants 1, 2 and 3 was the remaining half. The suit was resisted upon various grounds but ultimately a preliminary decree for partition was passed by the learned Subordinate Judge of Benares on 23rd April 1924. The operative part of the decree, material for the purpose of the present appeal may be reproduced here:
It is ordered and decreed that the account of the defendants is correct, that the plaintiffs' objection be disallowed, that the amin do partition the immovable property specified in the plaint, that the amin do partition the property into two parts and make a report by 14th May 1924, as to which portion can be given to the plaintiffs and that the amin do partition the property in such a way as there may be no difference in the actual price of any property.
2. The defendant Deo Narain is a lunatic and was represented in the action through his wife Mt. Makhna. The plaintiffs originally appointed Ram Narain as guardian ad litem of the lunatic; but Ram Narain refused to act, and, therefore, on the application of the plaintiffs, the Court appointed Mt. Makhna as the guardian ad litem.
3. It is significant that in the two written statements filed by Deo Narain and Ram Narain neither of them wanted to have his share in the joint family property ascertained and partitioned. The result of it was that a preliminary decree was passed in favour of the plaintiffs alone for a partition of their moiety share in the joint family property.
4. A commissioner was appointed to make the partition of the various items of property, involved in the suit and during the pendency of the proceedings an application was presented on behalf of Deo Narain through his wife Mt. Makhna that it was to the interest of the lunatic to have his share in the joint family property ascertained and partitioned from the shares of the plaintiffs on the one hand and that of Ram Narain on the other. This application was opposed by the plaintiffs and Ram Narain; but the learned Subordinate Judge allowed the application, upon the ground that it was to the interest of the lunatic that his share should be separated from the share of Ram Narain, the co-defendant, otherwise there was every prospect of the property of Deo Narain being utilized by Ram Narain for his personal use to the prejudice and detriment of the lunatic. Mr. Nizam-ud-Din Haidar, the commissioner appears to have devoted considerable time in assessing the value of the immovable property, belonging to the joint family. He held that the value of this property was Rs. 1,21,350-7-0. He allowed property of half of this value to the plaintiffs and of a quarter value to each of the defendants Ram Narain and Deo Narain.
5. An appeal was preferred by the plaintiffs to this Court, which was numbered and registered as First Appeal No. 61 of 1924. This appeal was dismissed by a Bench of this Court on 31st January 1927, for default of prosecution. Ram Narain and his son Lachhmi Narain have preferred the present appeal and their contention is that the trial Court having in its preliminary decree directed the partition of the moiety share of the plaintiffs alone and not having ordered that the shares of the defendants should be separated inter se, the learned Judge of the Court below was not justified in the course of the preparation of the final decree in directing that the share of Deo Narain should be separated from that of Ram Narain.
6. We have already observed that Deo Narain in his written statement did not claim that his quarter share in the joint family property should be separated. From a reference to the preliminary decree, dated 23rd April 1924, we find that the share of Deo Narain in the joint family property was not ascertained nor was there an order that his share should be determined and separated. Deo Narain did not appeal from the preliminary decree to this Court and a finality now attaches to the decree which was passed by the learned Subordinate Judge on 23rd April 1924. The Subordinate Judge had not the jurisdiction or the legal competency to go behind the preliminary decree, dated 23rd April 1924, and directing the partition of the share of Deo Narain from that of Ram Narain. For a parallel case we would refer to Balkishun Das v. Sita Ram  A.W.N. 215, Under the circumstances, we are of opinion that the contention of the appellant ought to succeed and the decree of the Court below directing the partition of the share of Deo Narain should be set aside.
7. Matters have been complicated by the death of Deo Narain during the pendency of this appeal. If Deo Narain, at the time of his death, was a separated Hindu, a title to a quarter share of the entire property devolves upon his widow Mt. Makhna.
8. The fact of our varying the decree of the Court below will not in any way prejudice the right of Mt. Makhna to institute a suit for partition of the share of Deo Narain from that of Ram Narain in the family property. It has been argued by the learned Counsel for Deo Narain that we ought to determine the question in this appeal as to whether Deo Narain was at the time of his death a separated Hindu. We do not think that the decision of this issue is necessary for the purpose of the determination of the appeal now before us. The learned Subordinate Judge has found and we accept the finding that Mt. Makhna was justified in making an application before the learned Subordinate Judge for the separation of the share of Deo Narain because that was calculated to safeguard the interests of Deo Narain as against Ram Narain. Our attention has been drawn to the following passage in the judgment of the learned Subordinate Judge, dated 16th August 1924:
All the circumstances convince me that Deo Narain's share should be separated. The plaintiff raised several false pleas in the suit. He stated that the household properties, cash, jewellery and outstanding debts were separated about three years ago. We have seen above the value of these amounted to Rs. one lac and more. The plaintiff's plea was found false and the Court ordered to bring these into partition. By such false pleas the plaintiff wanted to become owner of the same dishonestly. The insane defendant will lose his properties if they are not divided off and given to his guardian and wife Mt. Makhna.
9. We are of opinion that there was considerable justification on the part of Mt. Makhna in applying to the Court below for the partition of the share of Deo Narain with a view to safeguard his interests.
10. But, as we have already held that after the passing of the preliminary decree, the Court below was not competent to entertain the application on behalf of Deo Narain to separate his share and the said share could not be separated, we leave Ram Narain and Mt. Makhna to have their rights adjusted by means of a separate suit if they so choose. In the mean-time, we are of opinion, that the portion of the property, which has not been allotted to the plaintiffs should be considered for the purpose of the present suit to be the property held in common. What the legal effect of the application of Mt. Makhna upon the status of the family property or the constitution of the family qua Ram Narain and Deo Narain is, has got to be determined in a subsequent suit if the parties are not agreed as to it or if one or the other party choose to institute a suit. The parties are agreed that the property allotted to the plaintiffs is equal in value to the property allotted to the two sets of defendants, namely, Ram Narain and Deo Narain. An exception was taken by Mr. O' Conor as to the equality of the division on the ground that the amenities attending some of the houses, allotted to the plaintiffs and Deo Narain, were greater than those which were allotted to the share of the present appellants; but he is agreed that if the properties allotted to Deo Narain and Ram Narain be pieced together in that case Ram Narain should have no grievance.
11. The result is that we allow the appeal, modify the decree of the Court below and direct that the shares of Ram Narain, Lachhmi Narain and Mt. Makhna, as the representative of Deo Narain be held in common. In view of the peculiar circumstances of the case we direct the parties to bear their own costs.