The self-acquired property of the father devolves on his undivided son to the exclusion of his separated son.

Choudhary, J.

1. This appeal by the defendants first party is directed against the judgment and decree of the Additional District Judge of Darbhanga reversing those of the Munsif, second court, Samastipur, and arises out of a suit instituted by the plaintiff for a declaration of his title to and confirmation of possession, or, in the alternative, for recovery of possession, over 2 bighas 7 kathas and 121/2 dhurs of land, which admittedly belonged to one Ramrekha Singh. The plaintiff and defendant 4 are the sons of the said Ramrekha Singh.

In the year 1937 the defendants first party instituted a suit for rent against Ramrekha Singh and obtained an ex parte decree against him. Later on, Ramrekha Singh died in the year 1940. After his death, the defendants first party started execution of the ex parte decree in Execution Case No. 711 of 1941 against defendant 4, and in execution purchased 4 bighas 15 kathas 5 dhurs out of the holding of Ramrekha Singh, a moiety of which is the subject-matter of dispute in the present case. It appears that the defendants first party obtained delivery of possession on 8-6-1942.

The case of the plaintiff, however, is that the delivery of possession was only a paper transaction and the defendants first party never got actual possession over the land. His further case is that he not being a party to the execution case, his interest was not at all affected by the auction sale, and he, therefore, instituted the suit for the reliefs as stated above. The defendants first party contested the suit on the grounds, so far as are relevant for the purpose of the present appeal, that the land in question was the self-acquired property of Ramrekha Singh and that the plaintiff had separated from his father who lived joint with defendant 4 and, therefore, after the death of Ramrekha Singh, defendant 4 inherited this self acquired property of his father. Their further defence was that, in any event, defendant 4 was the recorded tenant in their sarishta and he represented the holding in the execution case.

2. The trial court accepted all the contentions raised by the defendants first party and held that the land in question was the self-acquired property of Ramrekha Singh, that the plaintiff had separated from him in his life-time and he (Ramrekha Singh) lived joint with defendant 4 and that on his death, therefore, defendant 4 alone inherited the land in question to the exclusion of the plaintiff. It also held that, in any event, defendant 4 represented the holding in the execution case. On these findings the suit was dismissed by the trial Court. On appeal the lower, appellate court affirmed the finding of the trial court so far as the land in question was held to be the self-acquired property of Ramrekha Singh and the plaintiff was held to have separated from him who lived joint with defendant 4 till his death, but it held that the self-acquired property of Ramrekha Singh devolved upon both the sons, though the plaintiff lived separate from him. It also held that defendant 4 did not represent the holding in the execution case. As a result of these findings, it came to the conclusion that the title of the plaintiff with respect to the disputed land was not at all affected by the auction sale and the suit of the plaintiff was decreed. Against the judgment and decree of the lower appellate court the defendants first party have come up to this Court in second appeal.

3. Mr. Lalnarain Sinha, appearing on behalf of the appellants, has put forward two contentions. His first contention is that, on the concurrent findings of the courts below that the disputed land was the self-acquired property of Ramrekha Singh and that the plaintiff had separated from Kirn in his life-time who lived joint with defendant 4, the suit of the plaintiff should have been dismissed on the simple ground that on the death of the father leaving self-acquired property an undivided son takes it to the exclusion of the divided son. His second