1. This is an appeal by the plaintiffs from the judgment of the learned Second Subordinate Judge of Midnapur, dated the 23rd June 1915, dismissing their suit. The suit was brought by the father of the present appellants asking for a de duration that the Will, said to have been executed by the brother of the original plaintiff dated the 1st Assar 13 6, was fraudulent and invalid and could not affect the plaintiffs' right by survivorship to the joint family property. The defendants were the widows of the deceased brother of the original plaintiff and they raised more than one defence, the chief amongst them being that this family was not governed by the Mitakshara School of the Hindu Law and that a separation had taken place between the original plaintiff and his brother, the deceased Chandra Mohan. As I have already stated, the original plaintiff died and the present plaintiffs were substituted in his place. The learned Judge of the Court below came to this conclusion. First of all, he found that this family was governed by the Mitakshara School of the Hindu Law and secondly, he found that, although there had been no partition in fact, yet the deceased Chandra Mohan had before his death expressed his intention of separating from his brother Sasi Bhusan and that that intention had been communicated to the original plaintiff prior to the death of Chandra Mohan. The Will, which was alleged to be fraudulent and which was executed by Chandra Mohan, has been established in certain Probate proceedings which were opposed by the original plaintiff. So that there can be no doubt that there was a Will and that that Will was properly executed in the manner required by law and it must be taken to be a valid document. The only question, therefore, is, What property does that Will operate upon? Had there been a separation between the deceased Chandra Mohan and the original plaintiff Sasi Bhusan, so that separate property would pass under the Will of Chandra Mohan that has been admitted to Probate? There has been a certain amount of discussion as to what is sufficient to effect a separation in a Mitakshara family. Mr. Dwaanath Chakrabarty on behalf of the plaintiffs has argued that a declaration of intention even when communicated to the other side, unless it is assented to or followed by a suit, is not sufficient to effect a separation. That won't do on the state of the authorities. The authorities, in my opinion, are quite clear in this respect. It is not necessary to go further than to recite the recent decision of the Privy Council in the case of Musammat Girju Bai v. Sadashi v Dhundiraj 37 Ind. Cas. 321 : 43 C. 1031 : 20 C.W.N. 1085 14 A.L.J. 822 : 20 M.L.T. 78 : 12 N.L.R. 113 (1916) 2 M.W.N. 65 : 18 Bom. L.R. 621 : 4 L.W. 114 24 C.L.J. 207 : 31 M.L.J. 455 : 43 I.A. 151 (P.C.). and it seems to me not open to doubt that any member of a Mitakshara family may exercise his intention without the assent of the other members to go out of the family and to have his share of the property and if, at any rate, that intention is communicated to the other members of the family, there would be a good separation. There cannot be any doubt about this. The only question, therefore, in this case is, 'does the evidence show that Chandra Mohan did prior to his death express his intention pf going out of the family and enjoying his share separately?' The Will that has been admitted to Probate does, in fact, state that there had been a separation and that I take is a sufficient evidence of intention to separate, and in a document that was to take effect after the death of the testator, the testator would not have made a statement like that unless he intended to separate from the other members of the family. The question is, 'was that intention communicated to the other adult member of the family, the only other adult member being Chandra Mohan's brother, the original plaintiff?' In this case, the evidence is not difficult, because there is a gentleman who has given evidence in this case and whom the learned Judge of the Court below has believed implicitly and the learned Vakil for the appellant stated that he did not intend to challenge his evidence. That gentleman is a member of the legal profession and his name is Kumuda Churn Ghosh. He is described in some part of the proceedings as an old and renowned Pleader. By that I suppose he is a person well krown in the district he comes from. His evidence is that he was called in to prepare this Will for the deceased Chandra Mohan, that he went and saw the original plaintiff Sasi Bhusan and informed him of the intention of Chandra Mohan to make a Will of his eight annas share of the property and that, instead of insisting that Chandra Mohan could not make a Will, Sasi Bhuatn approached the Pleader Kumuda Babu and asked him to prevail on his brother Chandra Mohan to make a disposition of half of his eight-annas share of the property in his favour; and what is more, according to the Pleader's evidence, the original plaintiff remunerated Knmuda Babu with a fee of Rs. 4 for what he asked him to do. Kurauda Babu then approached the deceased Chandra Mohan; but Chandra Mohan was not willing that any share of his property should go to his brother Sasi, but he did, in fact, make a disposition of a quarter of his property in favour of Sasi's son Profulla. It seems to me that, on these facts, if that evidence is accepted, it cannot be doubted that Sasi Bhusan, the original plaintiff, was well' aware of the intention of Chandra Mohan to separate and go out of the family, These facts are not in doubt. Whatever may be the question as to the earlier separation, whether we believe that or not, namely, that the deceased Chandra Mohan when he contemplated marrying a second time told his first wife that he would not leave his wives unprovided for and that he would separate and make a Will of his eight-annas share of the property in favour of the two ladies, the other portion of the evidence, namely, as to what took place at the time the Will was being made is not, in the circumstances, open to dnubt, as Mr. Dwarkanath Chakrabarty stated that he did not challenge the evidence of Kurauda Babu, the Pleader. If that is so, it seems to me that the intention of the deceased Chandra Mohan that Kumuda Babu, Pleader, communicated to Sasi, namely, that Chandra Mohan intended to make a Will of his eight-annas share, which could only be on the footing that there had been a separation and the request by Sasi, the original plaintiff, to Kumuda Babu that he should prevail upon his brother Chandra Mohan to make a disposition of half of his property in his favour, are only consistent with the fact that there was an intention to separate and it was communicated to the plaintiff of which he was fully, aware at the date of the Will. I think the learned Judge of the Court below same to a correct conclusion in this case. The present appeal mast, therefore, fail and. be dismissed with costs.
Shamsul Huda, J.
2. I agree.