Sir John Edge.:-

This is an appeal by the defendants from a decree, dated the 18th March, 1920, of the High Court at Allahabad, which reversed a decree dated the 30th November, 1916, of the Subordinate Judge of Cawnpore, by which the suit had been dismissed.

The suit in which this appeal has arisen is a suit in which the plaintiffs claimed a decree for the proprietary possession of an eight-annas share in each of the villages of Auria (Auria Tikra) and Aurangpur Gahdewa and certain fractional shares in four other zamindary villages in the Cawn pore District by dispossession of the defen dants, who were in possession and denied the title of the plaintiffs. The Subordi nate Judge dismissed the suit the High Court on appeal gave the plaintiffs the decree for the possession which they claimed. The parties were Hindus of the Thakur Gaur caste and were subject to the law of the Mitakshara. The follow ing pedigree will sufficiently show how the parties were related, but their Lord ships do not know which of the brothers Madho Singh and Hira Singh, or of the brothers Diwan Singh and Bahadur Singh was the elder :-

The suit was brought on the 12th No vember, 1914, in the Court of the Subordi nate Judge of Cawnpore after the death of Musammat Kanchan Kunwar. When the suit was brought Bahadur Singh was about 80 years of age and Niwaz Singh was about 76 years of age. As Diwan Singh was not a party to the suit, although his son Pancham Singh was a plaintiff, their Lordships have assumed that Diwan Singh was then dead. The most material question in this suit is whether Gulab Singh was when he died, joint with or separate from his cousins Diwan Singh, Bahadur Singh and Niwaz Singh.

Padum Singh and his sons Madho Singh and Hira Singh admittedly had constitu ted a joint Hindu family. Padum Singh died before his sons, and at his death Madho Singh and Hira Singh were joint. It is well-established law that those who allege that the members of a joint Hindu family had separated must prove, unless it is admitted, that there was a separation at some material time. That material time in this case must have been before the death of Gulab Singh. Hira Singh had died in 1862, and Madho Singh had died in 1867. Gulab Singh died sonless in 1886. The case of the plaintiffs was, and is that Gulab Singh was until he died a member of the joint family, which, until he died, consisted of the then living male descendants in the male line of Padum Singh. The case of the defendants, appel lants, is that Madho Singh and Hira Singh had separated, and consequently that Gulab Singh was separate from his cousins Diwan Singh, Bahadur Singh and Niwaz Singh. It happened in 1896 or in 1898 that the then members of the joint family separated. That separation did not take place at a material time so far as this suit is concerned, but the learned Subordinate Judge incorrectly held that the separation in 1896 or 1898 shifted the burden of proof, and that it was for that plaintiffs to prove that Gulab Singh was joint when he died in 1886. How far that misunderstanding of the law affected the Subordinate Judge in his consideration of evidence in this suit, it is impossible to say, but he found on the evidence that Gulab Singh was separate at the time of his death. The High Court found on the evidence that Gulab Singh was, when he died, a member of the joint family.

Their Lordships will later express the conclusion at which they have arrived as to whether there had or had not been a separation before Gulab Singh died, but before doing so they will refer to another question which must be considered, although they agree with the conclusions at which the Courts below were in agree ment on that subject. Their Lordships will now briefly state what that other question is.

The property in question in this suit came into the possession of Kanchan Kun war shortly after the death of her husband Gulab Singh. The question which their Lordships will first consider is how and in what right did Kanchan