1. This is an appeal from a decree of the 1st Class Subordinate Judge, Poona, allowing the plaintiff's suit for a declaration, injunction and the possession of certain property. The material facts are as follows: One Bhau Mahadev, a resident of Ale, Junnar taluka, had altogether nine sons and seven daughters; but the sons had all died by 1902; the last two remaining sons Trimbak and Atmaram died in that year. Defendant 13 is Trimbak's widow and defendant 12 is Atmaram's widow. Trimbak had a son 'Vishnu, who died of plague in 1917 leaving a widow Gitabai, who is defendant 14. Gitabai was pregnant at the time of her husband's death, but this fact was not known. On 19th January 1918, Bhau made a will by which he bequeathed all his property to Anant, the plaintiff, who is the son of Bhau's daughter Man-karnika. On 8th June 1918, Gitabai gave birth to a posthumous son Dny neshwar, who is defendant 1. As the birth of this son made the will inoperative, Bhau, on 22nd July 1918, executed a sale-deed in favour of the plaintiff by which he purported to convey to him his one half share in the joint family property belonging to himself and the minor defendant 1. On 4th March 1919 Bhau caused to be executed a partition deed by which the property was divided in two equal shares between the plaintiff and the minor. In the same year, Atmaram's widow Savitribai brought a suit against Bhau, the minor, and the plaintiff for maintenance, and obtained a decree by which her maintenance was charged on the whole of the property. In 1920 Bhau filed a suit, No. 421 of 920, against defendant 1, who was represented by his maternal grandfather Gangadhar, to obtain a declaration that the partition effected on 4th March 1919 was a valid transaction and not prejudicial to the interest of the minor defendant.
2. At the same time Anant, the present plaintiff, filed a suit, No. 422 of 1920, for a similar declaration and, if necessary, for a fresh partition. The defendants were Bhau and the minor defendant 1. It may be noted, though the point is not now material, that Bhau's suit was dismissed on the ground that it was not maintainable under Section 42, Specific Relief Act, and Anant's plaint was returned on the ground that the Court had no pecuniary jurisdiction to entertain it. On 5th September 1920, Bhau made a second will by which he bequeathed all his property to the plaintiff. Probate of this will was obtained in due course, but as the plaintiff's claim to the property was resisted, he had to bring the present suit in which he claims the following relief: A declaration that the sale-deed of 22nd July 1918, and the partition deed of 4th March 1919, are legal and the plaintiff became the owner of the property conveyed to him thereby; a permanent injunction restraining the defendants from obstructing the plaintiff in the enjoyment of the property in his possession; possession of certain properties now occupied by the defendants; a half share of moveable property specified in the plaint; and lastly, in the alternative, partition and possession of his one-half share in the properties in suit under the will of Bhau dated 5th September 1920. It has been held by the trial Court that the sale-deed (Ex. 114) required to be registered under Section 63-A, Dekkhan Agriculturists' Relief Act, and, not having been so registered, is not admissible as evidence of title. It has been held admissible however to prove the nature of the plaintiff's possession of the property, and in view of the fact that the plaintiff obtained possession in accordance with the sale deed, the transaction has been held valid on the principle of 'part performance.'
3. The partition deed has also been held to be legal and valid as having been effected by the managing member of a joint family. Incidentally I may mention that the learned trial Judge finds that there was good consideration for the sale-deed and that there is no substance in the allegations made by the defendants that Bhau was induced to execute it by undue influence or misrepresentation. It has also been held that from the time of the partition-deed Bhau became separate from the minor defendant 1 and therefore, apart from the sale-deed and partition-deed he was competent to devise his separate share to the plaintiff by his will. The learned counsel for the appellant has challenged all the findings of the trial Court, except the finding as to undue influence, misrepresentation, etc., and the finding that certain observations in the judgment in Savitribai's maintenance suit as to the nature of the sale-deed are not resjudicata. It is clear that the appellant's case as to undue influence is no longer maintainable in view of the judgment in the probate proceedings, and there can be no question of resjudicata in respect of the maintenance suit because that was tried by a 2nd Class Subordinate Judge.
4. I propose to deal first with the question of the effect of the sale-deed (Ex. 114). The trial Judge, I think, is clearly right in saying that in spite of the fact that it was not duly registered, this deed may be looked at to explain the nature of the possession of the plaintiff obtained in consequence of it, or for any other collateral purpose; but I cannot agree with the learned Judge that the fact that it was acted upon in this way avails to validate it as a conveyance. It is difficult to see how the doctrine of 'part performance,' on which the learned Judge relies, could in any way affect defendant who was not a party to the transaction and does not claim under either party to it. By birth he became joint owner with Bhau, but he does not claim under him. Apart from that however the view that the English equitable doctrine of 'part performance' can be invoked so as to circumvent the Indian law of registration has been exploded by the Judges of the Privy Council in Ariff v. Jadunath Majumdar 931 P.C 79, Currimbhoy and Co. v. Creete 933 P.C 29 and Pir Bakhsh v. Mahomed Tahar 934 P.C 235. The case of the partition is somewhat more difficult. When Bhau referred to this transaction subsequently, he spoke of it as though it was a partition affected by himself in his capacity as manager of the joint family. Thus, in Ex. 109, which is his written statement in the suit filed by the plaintiff in 1920, he says:
In order that there should arise no dispute or difficulty hereafter between the plaintiff and defendant 2 (i e., the present defendant 1) and because in my capacity as the eldest member of the joint family 1 have a right to make a partition, and also as a coparcener in the joint family I have made in repeat of the said joint family property, a proper partition of the share of the minor defendant 2, on 4th March 1919,.... I have at the same time given separate possession of his share to the plaintiff; and the share of the minor defendant 2 has separately remained in my possession as belonging to defendant 2.
5. And in the will (Ex. 86) he says this:
My chief intention in making the partition was that my joint relationship which existed under the Hindu law with Dnyaneshwar should be dissolved and that each of us should be the full owner of his own respective share, and should independently enjoy his own share. I made the partition-deed with this object in view and have divided the property into separate portions.
6. The learned trial Judge appears to have taken the same view of the transaction, but actually Bhau was not a party to the deed either as manager or otherwise: the only parties were defendant 1 represented by Bhau as his guardian and the plaintiff. The property was divided between them and the share which on a partition should have come to Bhau was assigned to the plaintiff on the footing that he had already become owner of it under the sale-deed. I think, therefore, that Mr. Thakor is probably right in his contention that this deed must be regarded as a mere corollary to the sale-deed, and if, as we hold, the sale-deed confers no title on the plaintiff neither does the partition-deed. In that view of the case the plaintiff's claim could only be based on the will, and he can claim under the will only if the testator had ceased to be a member of a joint family and acquired a separate interest in the property. The most important question, therefore, in the appeal is whether the trial Judge is right in his finding that Bhau ceased to be joint with defendant 1 from the date of the partition-deed. Let us look at the evidence on this issue. Although the partition-deed is ineffective as a conveyance to the plaintiff, the transaction is, in my opinion, very good evidence of Bhau's desire and intention of putting an end to the joint family. After all, although he was not formally a party to the deed, it was to all intents and purposes his transaction and hot that of defendant 1. The most important recital in the deed is this:
Out of the whole property, as stated above, Bhau Mahadeo Sambhus, the guardian of the minor, sold the half share which was his own to Anant on 22nd July 1918. At the time of the sale-deed it was settled that the enjoyment of the property sold by the deed should go on in a joint manner. But as a desire was expressed by Anant, the purchaser, that the property sold should be separated by a partition, and that the half share so purchased should be made available for separate enjoyment, and as it seems probable that dispute would arise because of the difficulties that might crop up in connexion with the joint enjoyment of the whole property, so the half share which has, as between the parties themselves been completely separated from the property described above, is as under.
7. The deed goes on to provide that the enjoyment of each of the two half shares should be by each party by himself and neither should obstruct the enjoyment of the other of his share. The plaintiff was put in actual possession of his share, and Bhau, as it appears, remained in management of the other half on behalf of the minor defendant 1. It is difficult to argue that the joint family subsisted, and indeed, the whole course of Bhau's conduct from that day to the day of his death is, in my opinion, irreconcilable with such a view. Bhau was examined as a witness in Savitribai's suit on two occasions. In his first statement, which is Ex. 107, he merely referred to the sale-deed and the partition deed. But in his second statement, Ex. 108, he said:
Dnyaneshwar has got one-half share in our estate.... I have sold to him my half share. The shares are separated into distinct portions.
8. These statements are not really consistent with the joint estate of Bhau and defendant 1. In the plaint of the suit which Bhau filed in 1920 for a declaration that the partition of 4th March 1919 was a valid transaction, he alleged that he and defendant 1 had been the owners of certain properties as members of a joint Hindu family, and he had sold his half share in that property to Anant and he had made a division of the property by metes and bounds and given possession to Anant and passed a partition-deed. The suit was filed for the purpose of obtaining the Court's sanction to these transactions, and it is not consistent with the view that Bhau considered himself to be still joint with defendant 1. I have already referred to Bhau's written statement in the suit filed by Anant (Ex. 109). Then, in addition, there are the following significant recitals in the will. After the passage referring to the partition, which I have already quoted, the testator says:
It is my opinion that the said partition-deed is proper and Sufficient from a legal point of view. But if possibly there has remained some flaw from a legal standpoint in the sale-deed passed by me on 22nd July 1918, previous to the partition, I declare hereby that I had and have dissolved my joint relationship with Dnyaneshwar; and that the partition of the property which has been effected by the said partition-deed is vary proper and hence effect should be given to it accordingly.
9. Further on he says:
I hereby declare my will as follows: that my daughter's son Anant Wasudeo Avachat should receive after my death all the property assigned to my share as also whatever property I may leave behind me. He is full owner of my property after me and he should enjoy it as the full owner of it.
10. This conduct and these declarations of Bhau are in my opinion not capable of any other construction but that as from the date of the partition-deed he desired and intended to put an end to the coparcenary and sever his joint relationship with defendant 1. He took every step he could think of to make that position clear. No doubt, as the learned counsel for the appellant says, he believed the sale-deed and the partition-deed to be valid. But the partition-deed, whether valid or not as a conveyance, was in any case an outward and visible sign of his own separation from defendant 1. It is perfectly clear that he never resiled from the position which he took up at that time. The question then arises whether this was enough to effect a legal dissolution of the joint family. The law on this point has been summarised in Mulla's 'Principles of Hindu Law,' Edn. 8, para. 325:
Partition is a severance of joint status, and as such it is a matter of individual volition. All that is necessary, therefore, to constitute a partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. It is immaterial, in such a case, whether the other members assent. Once a member of a joint family has clearly and unequivocally intimated to the other members his desire to sever himself from the joint family, his right to obtain and possess his share is unimpeachable whether or not they agree to a separation, and there is an immediate severance of the joint status. The intention to separate may be evinced in different ways, either by explict declaration or by conduot. It may be expressed by serving a notice on the other coparceners. The notice, however, may be withdrawn with the consent of the other coparceners. It may also be expressed by the institution of a suit for partition.
11. The leading cases on the point are: Girja Bai v. Sadashiv Dhundiraj 1916 P.C 104, Kawal Nain v. Budh Singh 1917 P.C 39 and Bal Krishna v. Ram Krishna 1931 P.C 154. Mr. Thakor of course does not dispute the correctness of these principles. He contends, however, that they should be limited in their operation to adult coparceners, and that a declaration of intention to separate will not be effective by itself as against a minor coparcener. In my opinion this view cannot be accepted. The learned counsel has relied on those passages in the judgments in Girja Bai v. Sadashiv Dhundiraj 1916 P.C 104 and Bal Krishna v. Ram Krishna 1931 P.C 154 where communication of the intention to separate to the other co-sharers is mentioned. He also relies on cases such as Lalta Prasad v. Sri Mahadeoji Birajman Temple 1920 All 116 and Ganapathy v. Subramanyam Chetty 1929 Mad 738, where it has been held that the institution of a suit for a partition by a minor will not affect a severance of the joint status unless sanctioned by a decree. When the judgments of the Privy Council are read as a whole, it may well be doubted, I think, whether their Lordships intended to make it an essential condition that the declaration of intention to separate should be formally notified to every member of the family. No doubt the intention must be published in some way. An act of volition which is kept secret could not be legally effective. There would indeed be no evidence in that case that it was genuine. But no formal declaration or notice is required. The intention may be evinced by conduct as held in Girja Bai v. Sadashiv Dhundiraj 1916 P.C 104, where reference is made to the case in Joy Narain Giri v. Grish Churider Myti (1878) 4 Cal 434. I do not think that anything more is essential than publication in the manner appropriate to the circumstances of the case. Defendant 1 was not unrepresented. Besides Bhau, he had his mother and maternal grandfather; and it cannot be supposed that they were ignorant of the position taken up by Bhau. Defendant 1 was himself a party properly represented in all the litigation to which I have referred and in which that position was made clear. It does not appear that there were any minors in Girja Bai v. Sadashiv Dhundiraj 1916 P.C 104, but there is a reference to minors at p. 159 of the report, which seems to indicate the view their Lordships would take on the point:
So far as their Lordships are aware, nowhere in the Mitakshara is it stated that agreement between all the coparceners is essential to the disruption of the joint status or that the severance of right can only be brought about by the actual division and distribution of the property held jointly. If this were so and there were minors in a joint undivided family, partition would be impossible until they had all attained majority, a position which is expressly combated and negatived in the Viromitrodaya. (Ch. ii, Section 23.)
12. Besides, the existence of minor coparceners is such a very common incident of a Hindu joint family that their Lordships could hardly have failed to mention a qualification which, if it existed, would limit the operation of the rule in question to such a material extent. As to the cases in which it has been held that a minor's suit for partition is not effective as a declaration of intention without a decree, it may be noted that the Patna High Court has taken a different view in Krishna Lal Jha v. Nandeshwar Jha 1918 Pat 91. There appears to be no Bombay case on the point. But assuming that the Allahabad and Madras cases are correctly deoided, they have, in my opinion, no material bearing on the point at issue. Ex hypothesi there must be an act of volition on the part of the separating coparcener, and in the case of a minor's suit the act of volition is probably not his but his guardian's or next friend's. But no act of volition or consent is required in the case of any other coparcener. I hold, therefore, that the fact that some of them are minors, and even the fact that the only other coparcener is a minor, will not deprive an adult coparcener of his right to separate if he chooses.
13. The trial Judge, therefore, was right in holding that Bhau had become separate from defendant 1 as from the date of the partition deed and remained separate till the end. That being so on the footing that the sale and partition deeds were invalid, Bhau became owner of a separate half share which he was competent to devise to the plaintiff. We are satisfied that the terms of the will are sufficient to confer this interest upon the plaintiff who is therefore entitled to succeed to Bhau's half share of the estate. Strictly speaking as a matter of form it would be necessary to direct a fresh partition to be made now. The learned trial Judge has considered that aspect of the case. He says:
Then the question is whether there should be again a partition of the lands and houses even if it is held that the partition and the sale deed are void. It would be a mere waste of money and time to make separate divisions of the shares again, when we have in this case already a separation of the shares made by Bhau. As already stated, there is no allegation nor is it proved that the divisions are unequal or detrimental to the interest of the minor. Under these circumstances, it would be a question whether an actual partition by metes and bounds of the lands and houses should be made again or not.
14. It was not necessary to determine the point in the lower Court, because the learned Judge was of opinion that the plaintiff derived title to the property under the sale deed and the partition deed. As we have taken a different view on that point and hold that the plaintiff can only claim under the will, defendant 1 would strictly be entitled to claim a fresh partition. But the considerations mentioned by the learned trial Judge still remain. It would apparently be an unreasonable waste of time and money to re-open the partition. There would probably be difficulties of various kinds in view of what has happened in the past. Mr. Thakor himself, after consulting his client, has intimated that he does not press for a fresh partition. That being so, the orders passed by the trial Court will stand, and the appeal will be dismissed with costs.
15. I agree
16. The effect that the presence of a minor coparcener has on the doctrine of severance of the joint interest in coparcenary property by a declaration showing an unequivocal intention to put an end to the joint estate, has been much discussed before us. Such a declaration may be made by a plaint in a suit for partition; or, to use the words of Sir Grimwood Mears, C.J., the institution of a suit for partition (by a person sui juris) is such a clear and unequivocal expression of determination that that in itself is sufficient to cause a severance of the joint family: Lalta Prasad v. Sri Mahadeoji Birajman Temple 1920 All 116. The Chief Justice distinguished the cases between (1) a suit for partition brought on behalf of a minor and (2) such a suit brought by an adult. The distinction is based on the ground that an adult coparcener has plenary powers, by his own volition, to bring about a severance of his own joint interest, but that the next friend of a minor has not the same plenary power, by his own volition, to bring about a severance of the interest of the minor in coparcenary property. When a plaint is filed in a suit for partition by a next friend on behalf of a minor, the Court exercises a discretion whether in the circumstances it is for the benefit of the minor that a severance of his interest should be caused: in other words, where the guardian of a minor expresses the intention to sever a minor's interest by filing a plaint on the minor's behalf, the expression of intention may not be effective if a severance would be detrimental to the interests of the minor: Ganapathy v. Subramanyam Chetty 1929 Mad 738. On the other hand, in a case where the severance was for the benefit of the minor, it was stated that no argument had been adduced in support of the contention, nor any authorities referred to in favour of the 'proposition that under Hindu law a minor cannot express either himself or through his guardian an intention to do that which is clearly not against his own interest': Krishna Lal Jha v. Nandeshwar Jha 1918 Pat 91.
17. But in all these cases the volition in question was the volition of the person who attempted to set the law into motion with the object of bringing about a severance. It is obvious that where a person attempts to bring about a particular result by making a particular declaration, unless the declarant has plenary authority to bring about the result by his own volition, his declaration may not be effective. This is merely stating the same proposition twice over in different words, and placing the two statements in a sequence that would be appropriate if one form of the statement were a necessary condition for the other. But the position contemplated in this duplicated statement is not what we are concerned with in the present case. For here we are concerned not with the person who takes action, not with the person who is desirous of bringing about a severance or who attempts to do so. The person with whom we are concerned plays a mere passive part. He is one who being sui juris or a minor is irrelevant to the competence of the person who is making the declaration with the object of bringing about a severance. Where such a declaration is being made, the coparceners other than the declarant himself are merely passive, in the sense that their assent to the declaration is not required, and no action on their part is needed, to give effect to the declaration. The declaration may no doubt take such a form that communication to the other coparceners is necessary for making it final and effective; but in that case the necessity for the communication is referable to the completion of the declaration itself,-to the exercise of the power inherent in the declarant. It has not been suggested in any judicial pronouncement cited to us-I have already referred to some of them, Girja Bai v. Sadashiv Dhundiraj 1916 P.C 104, Kawal Nain v. Budh Singh 1917 P.C 39 and Bal Krishna v. Ram Krishna 1931 P.C 154 were also cited, -that the existence of a minor must of itself deleteriously affect the competence of the major coparceners to sever their own interests from that of the minor, or to render their declarations nugatory, and yet that is the real effect of the appellant's argument in the present case. It is not suggested that there has been in the case before us any breach of a duty owed to the minor, by a person standing in any fiduciary or quasi fiduciary relation to the minor.