Ameer Ali, J.
1. These two consolidated appeals from a decree of the High Court of Madras arise out of a suit which was brought by the plaintiffs in the Court of the Subordinate Judge of Tinnevelly on January 31, 1910, for a decree for partition in respect of certain moveable and immoveable proparties together with outstandings of a money-lending business on the allegation that they and the defendants Nos. 1, 2 and 3 formed members of a joint undivided Mitakshara family. The following pedigree will explain the relative positions of the parties and their respective contentions.
| | |
Subramania Raman Annavi Krishna Annavi
Annavi (died) (died). (died).
| | |
Ananthanarayana *Adopted son |
Annavi (died). Ananthanarayana |
| Annavi (died). |
| Natural son of Ramalinga |
| Annavi *Married Ramal |
| Ammal (who died in |
| 1891). |
| | | | | |
Subramania Son Son Muthuswami Ramalinga Lakshmivaraha
Annavi (died). (died). (died). Annavi (died Annavi (died Annavi died
| 1898). 1901). March 1909).
Annathanarayana | |
Annavi (D.W.4.) | |
| | | | | |
Anantha- Subramania Krishna Annavi Ramakrishna Narayana Ponu
narayana Annavi (died) died Nov. '09 Annavi Annavi Ammal
Annavi (see = wife) = (wife) (D.2.) (P.1.) (D.4.)
*above Lakshmi Dharmi | |
=(Wife) Ramal Ammal Ammal | |
Ammal adopted (D.5.) (D.6) | |
(D.2) | | |
Ramalingam, Ramalingam |
minor (D.1.) (D.3.) |
minor (P.2.) (P.3.)
2. [The judgment proceeded at great lenght referring to the evidence. Their 'Lordships agreed with the conclusions of the Subordinate Judge in regard to the transaction of 1895 and disagreed with the view of the High Court. This portion of the judgment is omitted as being unnecessary for this report.]
3. There remain now the two questions, one relating to the validity of the two gifts made by Lakshmivaraha to the fourth defendant, Ponnu Ammal. The first is an assignment of Rs. 5,000 out of the money which fell to the share of Lakshmivaraha due from the Thiruvavuduthurai Mutt. This was done at the instance of Lakshmivaraha. The other is an assignment of a usufructuary mortgage held by him. In the aggregate the two sums amount to Rs. 8,000, The father has undoubtedly the power under the Hindu law of making, within reasonable limits, gifts of moveable property to a daughter. In one case the Board upheld the gift of a small share of immoveable property on the ground that it was not shown to be unreasonable. In the present case, the gifts relate to sums of money. The only question is whether they were reasonable. Both the Courts in India have answered the question in the affirmative and their Lordships have no materials or ground to hold otherwise.
4. Regarding the prayer for the allotment upon partition of Rs. 2,000 for the marriages of plaintiffs Nos. 2 and 3, the High Court disallowed the claim in respect of the prospective marriage but allowed it for the expenses of the marriage that took place before the decree in the first Court, on the ground that the joint family status was not dissevered until the decree for partition, and that the joint family liability continued until then. This view is opposed to the law laid down in the case of Girja Bai v. Sadashiv Dhundiraj (1916) L.R. 43 IndAp 151; 18 Bom. L.R. 621 where it was held expressly, that under the law of the Mitakshara, to which the parties in the present case are 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 Narayana served on them the notice Ex. 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. The decree of the Subordinate Judge dismissing the claim was therefore correct.
5. As regards the properties in Schedules XI and XIII, there are not sufficient materials before their Lordships to determine whether they belonged to the joint family or formed the exclusive property of the plaintiffs. It will be for the first Court to decide the question upon proper materials when giving effect to the decree for partition. But the parties would be well advised to settle it amicably.
6. It is admitted that the land allotted to the widow of Subramania Annavi (defendant No. 5), on her decease, became divisible among the heirs of her husband, in other words, the male members of the family parties to this action. To this extent the declaration made by the Subordinate Judge will be varied.
7. The High Court directed in its discretion that each party should bear his own costs. With that direction their Lordships do not propose to interfere. But having regard to the nature of the contentions, they consider that the plaintiffs must pay the costs of defendants Nos. 1, 6 and 4. The defendants Nos. 1 and 6, who alone impugned the right of defendant No. 2 to a share in the joint family properties, must pay his costs. The plaintiffs' cross appeal will be dismissed with costs.
8. Their Lordships will accordingly humbly advise His Majesty to set aside the decree of the High Court and restore the decree of the Subordinate Judge, subject to the above variation, with the above directions as to costs.