( 1 ) THE first is a plaintiffs and the other a defendants appeal against a decree of the Civil Judge of jhansi in a suit for possession and mesne profits in respect of a complete village and a complete mahal in each of two other villages. The plaintiff set forth a pedigree in the plaint, the correctness of which is now admitted by the defendant. Referring to that pedigree we find that suraj Prasad was the maternal ancestor of the plaintiff who died in 1898. After him his son Ram charan Lal died in 1901 and then died Ram Charan Lals son, Budh Singh, in 1924, leaving a widow Mt. Kashmiri. Ram Charan Lals brother, Kanhaiya Lal, died in 1930, and after him, the said Mt. Kashmiri on 27-8-1911.

( 2 ) THE plaintiff, as would be seen, is a son of the sister of Ram Charan Lal and Kanhaiya Lal, sons of Suraj Prasad, the ancestor aforesaid.

( 3 ) THE plaintiffs case was that Kanhaiya Lal and Ram Charan, the two brothers, were separate from each other, that he was entitled to the half share of Ram Charan after the death of Mt. Kashmiri in whom the property had vested on the death of Budh Singh, her husband, Eon of ram Charan Lal. His case further was that he was entitled also to the other half share which belonged to Kanhaiya Lal, as the will executed by the latter in favour of Mt. Kashmiri was not valid. So far as this one half share was concerned, there was no mention made is the plaint of any other basis on which the claim was founded. The defendant contested the suit mainly on the ground that Ram Charan and Kanhaiya Lal were joint, the latter being the surviving member of the joint family. He further pleaded that the will executed by Kanhaiya Lal was valid and that it had conferred an absolute title on Mt. Kashmiri who, in her turn, had bequeathed the property to the defendant, More than a year after the suit had been filed and about five months the defence had been filed, the defendant by an amendment of his written statement also pleaded that he was "the nearest reversioner to Kanhaiya Lal and Budh Singh, and even if the plaintiff is considered in the opinion of the Court to he Bandhu he has no right as against this defendant. " it may be noted that the will executed by Kanhaiya Lal was dated 2-3-1925, comprising the entire family property and that the same had been dealt with by Kashmiri under a will of her own dated 5-8-1910.

( 4 ) IT will be seen at once that the question of the status of the family had a direct bearing on the fate of the suit. If Ram Charan Lal and his brother Kanhaiya Lal had been joint, the latter would certainly be the surviving member of the joint family, and therefore the exclusive owner of the entire family property. In that case he would be entitled to alienate the whole of that property, as he actually did in this case by a will to Mt. Kashmiri, so that, if this lady was found to have genuinely executed a valid will in favour of the defendant, the title acquired by him (the defendant) would not be open to any challenge whatsoever. On the other hand, if the said brothers were separate from each other, Kanhaiya Lal had no right to deal with the one half share of his brother Ram Charan Lal, and to that extent the will executed by him in favour of Mt. Kashmiri and that executed by Mt Kashmiri in favour of the defendant would be ipso facto void, and the plaintiff would be entitled to a decree in respect of that half share at least straightway. This is precisely the view which the Court below took, and, holding further that the defendant had not proved himself to be the next reversioner of Kanhaiya Lal and Budh Singh, it decreed the suit for the one half share owned by Ram Charan Lal as a separated brother. It dismissed the suit in respect of the remaining half on the ground that Mt. Kashmiri who had acquired that share from Kanhaiya Lal under the will of 2-3-1925 had validly bequeathed that share to the defendant by her will of 5-8-1910. The claim for mesne profits was altogether dismissed