JUDGMENT

1. This is a plaintiffs' appeal and arises out of a suit brought by Ram Narain and his son Lachhmi Narain for a declaration that they are-the owners in possession of the property specified at the foot of the plaint and that Mt. Makhna, defendant-respondent, who is the widow of Deo Narain, the own brother of Ram Narain, had no right or title to the same.

2. The cardinal question for decision in the case was whether Deo Narain was joint with or separate from his brother Ram Narain on the date of his death in the year 1927. If Deo Narain died as a separated Hindu, as held by the Court below, Mt. Makhna became entitled to the properties owned by him by right of inheritance and the plaintiffs had no right to the same. There were some disputed questions of fact in the Court below, but the findings of the Court below on those points have not been assailed, and the whole controversy in this appeal has hovered over the question as to what was the legal effect on the status of Ram Narain and Deo Narain of a partition suit filed by two other brothers of Ram Narain against Ram Narain and Deo Narain in the year 1923, and of an application for partition of Deo Narain's share filed by Mt. Makhna during the pendency of that partition suit. The following pedigree shows the relationship of the parties to the partition suit and is explanatory of the facts hereinafter mentioned:

         _______________________________________________________          |             |            |             |           |       Ram Das      Ram Narain    Deo Narain   Parsotam    Raghunandan                        |        =Mt. Makhna       |       =Mt. Sampati                Lachmi Narain, Minor  |       Ganesh, minor     |                                    Mt. Shaman.                 |                                                                |                                          _______________________                                          |                                  __________________                                  |                 |                              Mt. Mantoria       Mansuria.

3. Rameshar and his five sons were admittedly members of a joint Hindu family governed by the Mitakshara school of Hindu law. The family was in affluent circumstances and owned moveable and immovable properties of considerable value. Both Rameshar and Raghunandan died while the family was joint and the remaining four sons of Rameshar became owners of the entire family property by right of survivorship. In the year 1923, Ram Das and Parsotam filed a suit for partition and separate possession of their one-half share in immovable properties from the half share of Ram Narain and Deo Narain who were impleaded as defendants, to the suit. Mt. Sampati, the widow, and Mantoria and Mansuria, the daughters of Raghunandan, were also arrayed, as defendants on the allegation that they were entitled to maintenance and to the marriage expenses of the two daughters from the family property, but we are not concerned with them in the present appeal. Deo Narain was of unsound mind and the plaintiffs proposed that Ram Narain should be appointed his guardian for the suit. Ram Narain refused to act as such on the ground that his interests were adverse to those of Deo Narain and then Mt. Makhna was appointed guardian ad litem of Deo Narain and acted as such throughout that litigation. In their plaint the plaintiffs of the partition suit alleged that they (plaintiffs) had separated from Ram Narain and Deo Narain in food and residence in or about the year 1920, and that the household properties and cash were divided at that I time, and prayed for the partition of only immovable properties. The suit was contested both by Ram Narain and Deo Narain. They admitted that the plaintiffs had separated in mess and residence and did not object to partition of the family properties, but denied that any partition of the household articles and cash took place as alleged by the plaint