Norman Macleod, Kt., C.J.
1. The plaintiff sued to obtain possession of the properties described in para 1 of the plaint and for an injunction against the defendants, alleging that the lands were the ancestral property of her deceased husband Nana and his brothers defendants Nos. 1 and 2; that they were divided after the family became separate and enjoyed separately by each member. The defendants contended that the lands were ancestral and jointly acquired, that they were in possession, and that there had been no partition as alleged by the plaintiff. It has been proved that there was a division of the greater part of the family property, and also that the three brothers commenced to live separate. That would indicate an intention of the members of the family to sever in interest. In Ramalinga v. Narayana : (1922)24BOMLR1209 ., their Lordships said, after expressing disapproval of the argument that the joint family status was not dissevered until a decree for partition was passed,
This view is opposed to the law laid down in the case of Girjabai v. Sadashir Dhundiraj (1916) L.R. 43 IndAp 151 where it was held expressly, that under the law of the Mitakshara, to which the parties were subject, an unambiguous and definite intimation of intention on the part of one member of the family to separate himself and to enjoy his share in severalty has the effect of creating a division of the interest which, until then, he had held in jointness. This intention was clearly intimated to the co-parceners when the plaintiff Narayan served on them the notice Exhibit II, on July 30, 1909. That notice effected a separation so far as his branch of the family was concerned, and no obligation rested on the joint family in respect of his sons' marriages.
2. If then a mere notice served upon the rest of the family by one of the members is sufficient to create a severance of interest, it is obvious, in this case, that the evidence which is referred to by the learned appellate Judge was sufficient to put an end to the joint family status. The fact then that two lands were left undivided would not affect the interests of the parties in these lands which would thenceforth be held by them as tenants-in-common and not as joint tenants.
3. We have been referred to the decision in Gavrishankar Parabhuram v. Atmaram Rajaram (1893) I.L.R. 18 Bom. 611, where the Chief Justice said:
The circumstances that there had been a partition in 1876-77 would not, in the absence of any special agreement between the parties, alter their rights as to the property still undivided, as to which they would continue to stand to one another in the relation of members of an undivided Hindu family, and no such agreement amounting to a partition of the fields in question is alleged by the plaintiffs.
4. With all respect I should say that the effect of the decision in that case was undoubtedly undermined by the decision of the Privy Council to which I have just referred. Once there Is evidence sufficient to satisfy the Court that the parties intended to sever then the joint family status is put an end to, and with regard to any of the property which had hitherto been joint and has not been divided by metes and bounds there will have to be an express agreement between the parties that they should treat that property at belonging to them as joint tenants. They will then be joint tenants, not as members of the joint family which no longer exists but under a special agreement made after the severance. There is no evidence here of any such special agreement. The learned Judge thought the reasons given by the plaintiff for saying that these lands had been kept undivided were substantially correct. It would certainly require very strong evidence that properties held by the parties as tenants-in-common at the date of the severance as the result of the severance were thereafter held as joint tenants. My opinion is that if that was attempted to be done, it would amount to a transfer of an interest in immoveable property. I think the decision of the First Class Subordinate Judge was right and the appeal must be dismissed with costs.
5. I agree that in the present case the decision of the First Class Subordinate Judge should be upheld. It has been found by him as a question of fact that there was a division of the family property, and that certain specific lands were allotted to the share of the plaintiff's husband. The only doubt which can be suggested is as to those lands which were left joint at this partition, and upon that point the decision in Gavrishankar Parabhuram v. Atmaram Rajaram I.L.R. (1893) 18 Bom. 611 has been relied upon as showing that, in the absence of any special agreement, the members of the family would stand to one another as members of an undivided family after the date of partition. As to that I agree with the view expressed by my Lord the Chief Justice that the decision in the Privy Council in Girja Bai v. Sadashiv Dhundiraj (1916) L.R. 43 IndAp 151 : 18 Bom. L.R. 611 makes it difficult to accept the previous decision of this Court in its entirety. Once it is held that there has been partition, I should myself be inclined to hold that the presumption must be that as regards that portion of the estate which remained undivided, the members of the family would hold as tenants-in-common unless and until a special agreement to hold as joint tenants is proved. I agree, therefore, that the appeal must be dismissed with costs.