Judgement

Appeal (No. 27 of 1921) from a judgment and decree of the High Court (January 31, 1917) modifying a decree of the Subordinate Judge of Hazaribagh.

The suit was instituted by the father (since deceased) of the respondent against the appellant, sued as a ward of the Court of Wards, to establish the plaintiffs right of succession to the estate of Raja Saroda Narain, the deceased husband of the appellant.

The property in dispute comprised (1.) the ancestral impartible estate of Serampur, (2.) immovable property acquired by the late raja, and (3.) movable property, including Government promissory notes, acquired by him. It was established in the litigation that the acquired property had been acquired out of the income of the estate.

The deceased raja, who died in 1907 without issue, was the grandson of the eldest son of Dubraj Singh, who had held the estate at one period; the plaintiff was the son of Bharat Singh, a younger son of Dubraj. The parties were Surjabansi Rajputs governed by the Mitakshara law.

The plaintiff claimed as surviving member of a joint Hindu family; alternatively, he alleged a custom excluding widows from succession, and claimed as heir. The defendant-appellant by her defence alleged that there had been a separation; she denied the alleged custom and claimed as widow; she contended that in any case only the ancestral raj was joint property. It appeared that Dubraj Singh had granted two villages, one of which was named Chowrah, to his younger son Bharat, the father of the plaintiff. The defence alleged that thereafter Bharat and his descendants had lived at Chowrah separated in food, worship, and estate. The plaintiffs case was that the grant was a customary kharposh grant for maintenance, and that there had been no separation.

The Subordinate Judge found that the late raja and the plaintiff were at the time of the formers death members of a joint undivided Hindu family; he, however, found that the custom alleged was proved. He held that the property acquired by the late raja had been incorporated by him with the impartible estate, and with it passed to the plaintiff, in whose favour he made a decree.

An appeal to the High Court was heard by Chapman and Roe JJ., the plaintiff having died and the present respondent, his son, having been substituted for him. The learned judges affirmed the finding that there had been no separation, but held that the alleged custom was not established. They found that the Government promissory notes had not been incorporated with the impartible estate, but that the residue of the acquired property had been so incorporated. The notes were accordingly held to have passed to the widow, the present appellant, but in other respects the decree was affirmed.

1922. Oct. 24, 26. De Gruyther K. C., E. B. Raikes, and Palat for the appellant. The proper inference from the grant to Bharat Singh and the removal to Chowrah was that a severance of the joint family then took place Thakurain Tara Kumari v. Chaturbhuj. (( 1915) L. R. 42 I. A. 192.) That case, like the present, related to an impartible estate, and the facts are similar. It is now well settled that impartibility does not exclude the right to sever by a clearly expressed intention to do so. The test whether a separation has taken place is the same whether the estate be partible or impartible; the Courts in India misdirected themselves on that point. The view in Laliteshwar Singh v. Rameshwar Singh (( 1909) I. L. R. 36 C. 481, 487.), that in the case of an impartible estate there is nothing for a separation to act upon, is not in accordance with later decisions. [Reference was made also to Parbati

v. Chaudhri Naunihal Singh (( 1909) L. R. 36 I. A. 71.), Girja Bai v. Sadahiv Dhundiraj (( 1916) L. R. 43 I. A. 157.), and Baijnath Prasad Singh v. Tej Bali Singh. (( 1921) L. R. 48 I. A. 195.)] Even if the family remained joint the appellant is entitled to all the self-acquired property. The respondent did not satisfy the onus upon