Judgment

SHAH, J. : This is an appeal filed with certificate granted by the High Court of Patna under Article 133 (1) (a) of the Constitution, and that appears to be the only justification for the appeal to be on the file of this Court.

2. One Bideyanath Misir died many years ago leaving him surviving five sons - Makund, Mohan Lal, Basudeo, Ranu and Bouku. Mohan Lal relinquished his interest in the property of the joint family. Ranu died on November 9, 1913, leaving him surviving his wife Alikrani and no lineal descendants. After the death of Makund and Basudeo, Bouku and his sons and grandsons instituted, in the Court of the Subordinate Judge, Darbhanga, an action for partition and separate possession of their share in the properties described in the Schedule to the plaint on the plea that the properties were of the joint ownership of the parties. The plaintiffs claimed a half share in the properties on alleging that they were entitled to a fourth share in the right of Bouku and another fourth share of Ranu which had after the death of Ranu been entered in the name of Bouku, and income whereof was appropriated by him. The suit was defended by the sons of Makund and Basudeo. They contended that the claim as barred as barred as res judicata, in that a suit was instituted in the Civil Court in 1914 by Basudeo for partition and separate possession of his share in the properties and that the arbitrators who were appointed with the consent of the parties made an award allowing to Makund a six anna share, to Basudeo a five anna share and to Bouku the remaining five anna share, and the property of Ranu was to remain in the possession of his widow Alikrani and on her death it was to be divided in the same proportion between Makund, Basudeo and Bouku. The defendants submitted that pursuant to this award, the property was divided and the parties entered into separate possession of their respective shares. The claim of the plaintiff that Bouku was in possession of Ranu s share was denied.

3. The Trial Court decreed the suit holding that notwithstanding the award of the arbitrators the suit filed by Basudeo being dismissed for non-payment of Commissioner s fee, the parties must be deemed relegated to the original status as members of the joint Hindu family. In appeal the High Court of Patna set aside the decree passed by the Trial Court and dismissed the suit filed by the plaintiffs. With certificate, Bouku and his descendants have filed this appeal.

4. On the evidence it is clear that there was severance of the joint family status and the members of the family were divided in 1914 and their respective shares were since then separately enjoyed and possessed by them thereafter and were entered in the revenue records in their names. That the three members of the family - Makund, Basudeo and Bouku - were in possession of their separate shares in the property of the joint family is established by a mass of evidence and the admission made by Bouku and his sons and grandsons. In paragraph 13 of the plaint it is averred:

" .... for the sake of their convenience and meeting their expenses, some properties are in possession of their parties. , . x x Although several parties to this suit have at times, mortgaged or even sold some land in the possession in time of their personal need, yet defendant No. 1 (Balakrishna son of Makund) since the death of Makund Misser, has been keeping with him the produce of considerable lands held in jointness, without dividing the proportionate share of the parties, for the expenses of the joint family x x" In paragraph 14 it is averred that Ranu Misser had appointed Rangi son of Bouku as adopted son and that Ranu thereafter lived with him and on his death Rangi performed the obsequial ceremonies and entered into possession and occupation of his entire estate as legal heir and had been appropriating the produce thereof since that day. These averments clearly show that the three branches were in separate possession of thei