JUDGMENT

1. This is a defendants' appeal arising out of a suit for recovery of possession brought by the daughter's sons of Brij Behari claiming possession of Brij Behari's estate on the ground that his widow Mt. Sukhdei had accelerated the succession with the consent of the daughter Mt. Ram Kedari in favour of the present plaintiffs by means of a gift dated 13th June 1923 which related to the entire estate. The main defence to "the suit was two-fold. In the first place it was pleaded that Brij Behari was joint with the other defendants Beni Din Ram Autar and others and in the second place that the effect of an arbitration award of 7th June 1918 and the proceedings following thereupon was to prevent the plaintiffs from obtaining possession of the property during the lifetime of Mt. Sukhdei. The learned Subordinate Judge has decided both these points against the defendants.

2. The question of separation was a pure question of fact and the learned Subordinate Judge has written an excellent judgment dealing with the entire evidence in a clear manner. As we are agreeing with his view it is not disputed that Brij Behari's father Ishwar Din in his lifetime got portions of properties entered in the names of his four sons and his wife and on the death of one of the sons got his share divided among his surviving sons. It is immaterial to consider whether the division among the sons was absolutely equal or unequal. Indeed there is no clear proof of any inequality in the shares which were given to the sons, nor is it quite clear whether the entire property in the hands of Iswar Din ancestral. The fact is admitted that for about 40 years the names of these sons have stood recorded separately and that of Mt. Mathuri, widow of Iswar Din stood recorded separately against other properties.

3. The learned Subordinate Judge, has believed the evidence of the two witnesses Jagannath and Mahadeo Singh produced by the plaintiffs particularly that of Jagannath which was to the effect that the brothers separated from each other in the lifetime of Iswar Din under the said arrangement and got properties separately and lived and messed separately and carried on cultivation separately. There are a number of documents executed by the sons transferring properties standing in their names respectively which go to show that there were separate dealings. Out of those one document, viz.: a mortgage bond dated 12th February 1896 is particularly important inasmuch as it shows that two brothers borrowed money from another Brij Behari and mortgaged their own share in the property to him. This transaction shows dealings inter se which are not ordinarily expected in a joint family. It is further clear and indeed Beni Din defendant admits that the brothers have had separate houses and separate sir cultivation and separate cattle sheds. The explanations given by the defendants of these separate transactions were not convincing and have been rejected by the Court below. Thus the separation of the property from the lifetime of the father, separation in the cultivation separate residence, mess and dealings as well as transactions inter se are all clearly established by the evidence.

4. The arbitration award on which the defendants rely itself goes to show that on the death of Brij Behari, Beni Din and others acquiesced in the widows of Brij Behari taking over possession of the property standing in his name. Furthermore they allowed the widows to take a share in the inheritance left even by Mt. Mathuri which was said by them to have devolved on their husband. Having regard to all this evidence there can be no doubt that the presumption of jointness was completely rebutted and separation was complete.

5. The finding of the Court below must therefore be accepted.

6. The next question is whether the arbitration award of 7th June 1918 under which the two widows were allowed to remain in possession during their lifetime after the death of Brij Behari with the proviso that on the deat