1. This is an appeal against a judgment of the Judge of Patna rejecting the appellant's petition for a certificate for managing the property of her minor son. Her husband, Joymungul, and Kassee, one of the respondents, were two uterine brothers, sons of one Byjnath, who left by another wife, Mussamut Larawun Koer (the other respondent), two other minor sons. The mother of Joymungul and Kassee is not alive. The present application was made after the death of Joymungul. It was opposed principally by Larawun Koer, on the ground that her minor sons, Kassee, and Joymungul, were members of a joint Hindu family of which no separation has yet taken place. It was, therefore, contended that, under the Mitakshara law, the minor son of Joymungul was not possessed of such property as could be taken charge of under the provisions of Act XL of 1858. The Judge, in accordance with this objection, has refused the application.
2. It appears that, after the death of Byjnath, the whole of his property was taken charge of by the Court of Wards, all his sons then being under age. On Joymungul's attaining majority, the Court of Wards withdrew their management, and relinquished possession of the property. Mussamut Larawun Koer then applied under Act XL of 1858, and obtained a certificate in respect of the shares of Kassee and her two minor sons. On Kassee's attaining majority, and on his application, his share was excluded from the operation of the certificate granted to Mussamut Larawun Koer. After the land Registration Act was passed, the names of the four brothers were recorded with the specification of the shares of each.
3. Notwithstanding these proceedings, the Judge finds on the evidence (and I think the finding is quite correct) that be property remained joint, and the profits of the property were enjoyed jointly by all the members, who lived in commensality without any reference to their respective shares. There has not been any separate appropriation of the funds of the family or the profits arising from the landed property.
4. It has been contended before us, that the proceedings taken by Mussamut Larawun Koer under Act XL of 1858, and the registration of the names of the four brothers with the specification of their respective shares, effected a valid partition under the Mitakshara law.
5. We do not think that this contention is valid. It is true that, according to the true notion of the joint family under the Mitakshara law, no individual member can predicate of the joint property that he is the owner of a particular share, yet a declaration to that effect not accompanied by an intention to deal with a particular share separately would not constitute a separation of the joint family. Under the Land Registration Act, the joint owners are required to specify their shares, and accordingly the shares of the four brothers were specified. As to the certificate obtained under Act XL of 1858 by Mussamut Larawun Koer, it was evidently applied for, as the Judge remarks, under the impression that a certificate under the Act in respect of the property of a minor, who is a member of a joint Hindu family governed by the Mitakshara law, can be granted.
6. I am of opinion that the decision of the lower Court is correct. The appeal is, therefore, dismissed with costs, which we assess at Rs. 80.
7. I fully concur as to the condition of the family as joint and undivided. I regret to be obliged to assent to the order dismissing the appeal. The family is in a peculiar position. The adult uncle of the minor is stated to be incapable of managing. The mother of the other minor holds a certificate which she ought not to have obtained under the current exposition of the law, and no one can, as it seems, obtain a certificate to take charge of the estate of Joymungul's infant son. But the case of Gourah Koeri v. Gujadhur Purshad (I. L. R., 5 Cal., 219) is authority which I must follow.