1866. บ. RAMA SUBBA cannot be heir in his natural family, but only to his APPOVIER adopted father; but it is otherwise where the natural and adoptive fathers agree that the adopted shall retain his natural rights, or belong to both fathers. If a man having two sons gives away one, and his other son die, and their issue fail, the adopted son may resume his natural rights. Sutherland On Adoption, pp. 127, 187. Mr. Prendergast, for the third, fourth, and fifth The family of the parties to the suit was a divided family. The right to impugn the validity of the partition deed of 1834, if any error existed, which is denied, was barred by lapse of time under the law of limitation, as well as by the acquiescence of the parties before the commencement of the suit. The partition made in 1834 was made with the personal concurrence of the Appellant, who, it is acknowledged, at that time was under no legal disability. He is, moreover, as appears from the evidence, estopped, by his own acts and declarations subsequent to the partition, from impugning its validity. With regard to the adoptions which the Appellant impugns, the evidence in the cause is sufficient to establish their validity; but if the Appellant had any right to question their validity, such right is barred by the lapse of time before the commencement of the suit. The decree, therefore, of the Sudder Dewanny Adawlut was in all respects just and proper, and ought to be affirmed, and this appeal dismissed with costs. The Right Hon. Lord WESTBURY : This is an appeal brought from a decree of the Sudder Court at Madras, which affirmed the decree of 1866. APPOVIER the Zillah Court of Tinnevelly, which itself affirmed the original decree of the Sudder Ameen of that District. It is, therefore, an appeal from three decrees, RAMA SUBBA unanimous in rejecting the claim of the Appellant. The present appeal is founded upon an allegation that certain property (shares in which are claimed by the Appellant) continues the undivided property of the family of which the Appellant was a member, and which was originally an undivided family. The foundation of the defence to the Appellant's claim is an instrument, which we will call, for the present purpose, a deed of division, dated the 22nd of March, 1834. One Certain principles, or alleged rules of law, have been strongly contended for by the Appellant. of them is, that if there be a deed of division between the members of an undivided family, which speaks of a division having been agreed upon, to be thereafter made, of the property of that family, that deed is ineffectual to convert the undivided property into divided property until it has been completed by an actual partition by metes and bounds. Their Lordships do not find that any such doctrine has been established; and the argument appears to their Lordships to proceed upon error in confounding the division of title with the division of the subject, to which the title is applied. According to the true notion of an undivided family in Hindoo law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share. No individual member of an undivided family could go to the place of the receipt of rent, and claim to take from the V. ΑΙΥΑΝ. 1866. V. RAMA SUBBA AIYAN. Collector or receiver of the rents, a certain definite APPOVIER share. The proceeds of undivided property must be brought, according to the theory of an undivided family, to the common chest or purse, and then dealt with according to the modes of enjoyment by the members of an undivided family. But when the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided. With reference to the cases in the Madras High Court which have been relied upon by the Appellant, we believe, upon an examination of them, that there is not to be found in any one, clearly and affirmatively, the doctrine contended for with reference to an agreement for the conversion of joint ownership into separate ownership, namely, that such agreement is of no effect to convert an undivided family into a divided family without an actual partition. In the last case cited and relied upon by the Appellant, decided in the month of February, 1865, in the High Court at Madras, that Court refuses to assent to the doctrine that nothing short of an absolute partition by metes and bounds in the lifetime of the different members will make the shares of the property divided. Undoubtedly their Lordships would be unwilling to reverse any rule regarding property which had been 1866. APPOVIER บ. AIYAN. long and consistently acted upon in the Courts of the Presidency, but it is impossible for them here to come to the conclusion that the doctrine contended for by RAMA SUBBA the Appellant is to be considered a rule, which has been so accepted or acted upon by those Courts. Upon an examination of the cases, it will be found that in some the deed of partition was not attended by any subsequent act, and had been repudiated by subsequent conduct of the parties; and in another of the cases cited, where there had been a decree of partition, it seems that the decree of partition had been abandoned. If, then, the rules derivable from the true theory of an undivided family are such as we have described, and are not at variance with any settled course of legal decision, let us apply those rules to the deed upon which this case in reality depends. The Appellant admits that the deed was operative with regard to a certain number of villages, because, he says, those were actually divided; but he contended it was not a deed which made the family a divided family with regard to the rest of the villages, because it has not been followed by actual partition. It is necessary to bear in mind the twofold application of the word "division." There may be a division of right, and there may be a division of property; and thus, after the execution of this instrument, there was a division of right in the whole property, although, in some portions, that division of right was not intended to be followed up by an actual partition by metes and bounds, that being postponed till some future time when it would be convenient to make that partition. The deed, after dealing with the villages that were 1866. APPOVIER V. RAMA SUBBA intended at once to be the subject of an actual parti- same partition of the villages Then, if there be a conversion of the joint tenancy of an undivided family into a tenancy in common of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement, and that is a separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time be claimed by virtue of the separate right. The words with which this instrument of the 22nd of March, 1834, concludes, manifest an intention to become divided, for, after expressing that they have |