1. This second appeal arises out of a suit brought by the plaintiffs-appellants against Hulas Rai defendant-respondent for his share of profits in a certain village for the years 1328 and 1329 F. corresponding to July. 1920 to end of June 1922. The defence was that the parties to the suit at the time in respect of which profits were claimed, were members of a joint Hindu family and that one or more co-parceners cannot sue another co-parcener for share of profits even though the defendant be a lambardar. Both the lower Courts accepted this defence. They held that there had been no partition in the family previous to the date of a partition decree subsequent to the years in suit.
2. In this second appeal there are two points taken by counsel for the appellants. One point is that there was evidence referred to by both the lower Courts of an agreement by the parties to refer a question of partition to arbitrators as early as the 29th August 1920, and that the lower Courts were wrong in holding that this agreement did not effect a separation between the parties to the suit. The trial Court held that this agreement was not a sufficiently unequivocal declaration on the part of the parties of their intention to hold their shares separately to justify its being deemed to effect a separation. The lower appellate Court confirmed this view by invoking the fact of a subsequent suit for partition brought and decreed in the civil Court. We have been referred to the decision of their Lordships of the Privy Council in Kasam v. Jorawar Singh A.I.R. 1922 P.C. 353. In that case it was held that an agreement appointing a certain person to partition the joint family property of the parties and agreeing to accept the partition made by the arbitrator was sufficient to effect a severance in interest. We are unable to distinguish the present case on the facts from this case. Counsel for the respondent has strenuously argued that in the Privy Council case one party at the time of the agreement was claiming a specific share of the property and that this factor is absent from the agreement relied upon in the present suit. He also argues that the language of the present agreement is of too vague a character to justify its being described as an unequivocal declaration on the part of the joint holders of their intention to hold their share separately. The agreement begins with the words:
Since between the two respective parties there is a dispute about the complete partition of the property moveable and immovable and the money-lending business and other business.
and goes on to refer the matter to arbitrators. It is common ground that the attempt at a partition by arbitrators was abortive and that a suit was, in consequence, later on filed in Court in 1921. These facts convince us that at the date of the agreement the parties separated in the eye of law.
3. It has been argued that because in the partition suit ultimately tried in Court the Subordinate Judge came to a finding that at the date of the suit being filed the parties were joint, it must be deemed to have found that they were not separate in 1920. In our opinion this argument is not valid. What the Subordinate Judge found was that at the date of the suit there was nothing to stand in the way of a suit for partition of the whole property. There was no question in that suit that the suit was barred by anything happening in 1920. For this reason we find that during the years in suit the parties must be deemed to have been separate.
4. Another plea taken up was that inasmuch as the plaintiffs were recorded in the khewat as proprietors to the extent of 8 annas it was not open to the lower Court to receive evidence to show that as a matter of fact the 16 annas had not been partitioned and that 8 annas only represented the fractional share that the plaintiffs would have been entitled to on a partition. In view of our finding on the first plea we do not consider it necessary to discuss this plea.
5. Accordingly we allow the appeal, set aside the decree of the Court below and remand the suit to the Court of first instance through the lower appellate Court for decision on the merits. The costs here and hitherto will abide the result.