Lord Atkinson :-

This is an appeal from a decree, dated the 8th September, 1913, of the Officiating Additional Judicial Commissioner, Mr. J. Mittra, modifying a decree dated the 26th February, 1912, of the Second Additional District Judge, East Berar.

To make the evidence and contentions put forward in the case intelligible, it is necessary, especially as the respondents unfortunately do not appear before the Board, to set out as a preliminary the pedigree of the principal appellant Amritrao. It is not disputed that it is correctly set forth in the following table :-

The family of Sonaji was a joint Hindu family governed by the Mitakshara Law.

Sonaji's second son, Amritrao, was evidently a man of enterprise. He and the other appellants contend that he separated completely and effectually from his family in or about the year 1870, twenty-seven or twenty eight years before his father's death in 1898, and that after his separation he acquired by his own exertions the property, considerable for him, described in Schedule B attached to the plaint in the action out of which the appeal has arisen. He claims this as his own. The effort of his youngest brother Gulabrao and of the descendants of his younger brother Motirao, if not of the plaintiff in this suit, who is the adopted son of the eldest son of the family, Bhagwantrao by name, is to establish that the aforesaid property in Schedule B is, in reality, the property of the joint family, on the ground that he, Amritrao, never completely and effectually separated from his family, and that the wealth which he subsequently acquired is merely an accretion of the portion of the family property, whether his full share of it or not, of which he obtained the possession and enjoyment at the time of the alleged separation. It is obvious that if this latter contention were established, the plaintiffs, the descendants of Motirao, Amritrao's brother, and his youngest brother Gulab Rao would become entitled, each, to one-fourth, of the property Amritrao claims as his own. The significance and effect of all Amritrao's action, and his efforts, after the year 1870, to acquire property depend upon the question whether he then effectually separated himself from his family or not. That is the dominant, if not indeed the crucial, question in the case. It is admitted that no regular deed of partition was executed at the time of this alleged partition, for the reason given, not unnatural if true, that the family then owned no land which needed to be divided, but even if this were not so, it is well established that the unequivocal and unmistakable manifestation by a member of a joint Hindu family by his words or conduct of a fixed or determined intention to become separate is sufficient to effect the separation of his title and the severance of his interest, although division of possession, or partition by metes and bounds, does not take place, or though there be no separation in food and dwelling. And of course a separating member of such a family may of his own free will accept as his share as small a portion of the joint property as seems good to him, and renounce all claims to the rest.

The pleadings in the action out of which this appeal has arisen are, having regard to the grounds of the decision of the Judicial Commissioner, worthy of attention.

Originally Amritrao and his three sons were not made defendants. They were added at the instance of Gulabrao. In the first paragraph of the plaint it is stated that Amritrao took some fields as his share and became separate thirty years before the date of the institution of the suit in the year 1907; that he had no right whatever to the joint property; and that after his separation his three brothers remained joint. In paragraph 2 it is further stated that since the previous year Gulabrao and his grandson Sadasheo took possession of entire property, i.e., the joint property mentioned in Schedule A, and denied the plaintiff's claim thereto. The relief prayed is f