1. This Second Appeal arises out of a suit for partition instituted by a Nayar widow and two among her three children to recover in their own right and in the right of defendant 7 to the action, the share which one Krishna Filial Hainan Pillai (hereinafter referred to as Baman Pillai), the husband of plaintiff 1 and the father of plaintiffs 2 and 3 and defendant 7, was entitled to out of his tarwad properties. In O. S. No. 1044 of 1114 on the file of the Kottayam District Munsiff's Court, a brother of the said Raman Pillai had instituted a suit for partition of the tarwad, properties and Baman Pillai, who war, defendant 2 therein, filed a written statement on the first hearing date (19-12-1114) itself claiming his due share (one-seventh) and for a division of the same when the tarwad properties were divided by metes and bounds.
However, overlooking that fact and after declaring among other defendants Raman Pillai also ex parte the court passed a preliminary decree in favour of the plaintiff in the suit for the one seventh share claimed by him. The plaintiff thereafter took the necessary steps tohave his share divided and got a commission appointed by the court to effect the division. Pending that proceeding for passing the final decree, on 24-6-1120 Raman Pillai applied to the court to get his share also divided. During thecourse of the hearing of that petition it was that Raman Pillai found out that he had already been declared ex parte. He therefore applied to have the order declaring him ex parte vacated.
As that application was made out of time, a petition to condone the delay was also filed, but all three applications were dismissed on 9-12-1121 and thereafter Raman Pillai did riot take any steps to obtain his share. Meanwhile the final decree in favour of the plaintiff had been made on 2-7-1120. Raman Pillai died on 1-7-1122 and not long thereafter, the suit giving rise to the Second Appeal (O. S. No. 372 of 1122) was instituted (29-3-1122) by the plaintiffs claiming that by the steps he had taken in the prior suit, O. S. No. 1044 of 1114, Raman Pillai had become separated from the remaining members of the tarwad and that on his death, his share had devolved on them and defendant 7.
2. There are seven defendants to O. S. No. 372 of 1122. While defendants 1 to 3 and 7 remained ex parte, defendants 4 to 6 contested it. The defence raised was that the preliminary decree in O. S. No. 1044 of 1114 had only provided for a division of the share of the plaintiff thereto and not that of Raman Pillai or of any other member of the tarwad and that by his written statement claiming his share or the subsequent application for division and allotment of his share to him, Raman Pillai had not obtained a divided status from the rest of the tarwad and that he therefore died without having any alienable or heritable share in the tarwad properties.
This defence found favour with the learned District Munsiff as also with the learned Additional District Judge, Kottayam who heard the appeal from the Munsiff's decision. Purporting to follow a long line of Full Bench decisions of the Travancore High Court, both the lower courts held that in the absence of a provision for an allotment of a share to him Raman Pillai died possessed of no heritable share in his tarwad properties and that therefore the claim made by the plaintiffs was unsustainable.
According to the lower courts neither the filing of the written statement seeking to obtain his share or the subsequent application for division or even their combined effect had given Raman Pillai a divided status in his tarwad. The decisions relied upon are Narayana Pillai v. Parameswaran Pillai, 18 Trav LJ 747 (A); Lekshmi Pillai v. Padmanabha Pillai, 22 Trav LJ 227 (B); Velayudhan Pillai v. Neelakanta Pillai, 26 Trav LJ 29 (C); Janaki Amma v. Narayanan Thampi, 32 Trav LJ 577 (FB) (D); Parameswaran v. Karthiyayani Piilai Thankachi. 33 Trav LJ 419 (FB) (E); Narayana Pillai v. Kunji Pillai Amma, 34 Trav LJ 732 (PE) (F); and Krishna Pillai v. Padmanabha Pillai, 1948 Trav LR 617 (G). Of these the decisions in Lekshmi Pillai v. Padmanabha Pillai (B); and Velayudhan piilai v. Neelakanta Pillai (C), are each by Full Benches constituted of five Judges and each of the remaining five cases by Full Benches of three Judges.
These decisions while recognising that the change in the Marumakkathayam law introduced by the Nayar Acts made the doctrine ofseverance of status applicable to Nayars sought to Introduce limitations to that doctrine unknown to Hindu Law.
3. The decisions mentioned above and several Division Bench rulings in Travancore have dealt at very great length about the true construction of the various Sections of the two Nayar Acts (Act I of 1088 and Act II of 1100) relating to partition of tarwad properties. Much learning has been brought to bear upon Section 39 of the Nayar Act II of 1100 which enacts:
'Until partition, no member of a tarwad shall be deemed to have a definite share in tarwad property liable to be seized in execution nor shall such member be deemed to have any alienable or heritable interest therein.'
Decisions show considerable differences of opinion among the learned Judges of the erstwhile Travancore High Court as regards what exactly the word 'partition' meant. Some learned Judges considered the word 'Partition' to mean attaining of a status of separation even apart from a preliminary decree or a division by metes and bounds. According to them 'until partition' meant 'until the share of the individual is claimed'. Another school of Judges has been inclined to hold that the word 'partition' only meant an actual division by metes and bounds and the allotment of individual shares to those that claimed to be separated.
Yet a third view was that what was intended is either an actual physical division or in the alternative a preliminary decree of a court defining the share of the parties claimed to be divided. These differences of opinion had ' brought about considerable amount of confusion & uncertainty as to when a member of a Nayar tarwad can under the statute law governing him to be considered to have become divided in status.' The Travancore-Cochin High Court was not inclined to follow the views expressed! in some of the cases referred to above and Varadaraja Iyengar J., before whom this Second Appeal first came up for hearing referred it to a Division Bench by the following order:
'The question is raised in this appeal whether a member of a Nair tarwad can attain divided status by the expression of an unequivocal intention to divide, apart by the filing of a suit for partition. The predecessor-in-interest of the plaintiffs had expressed such intention in a written statement filed by him (though at a time when he was standing ex parte) but he had not however pressed his claim to a share at the stage of preliminary decree. It would appear that subsequently and just before the final decree allocating the plaintiff's share was passed, he intervened in the case with payment of court-fees in respect of his share and also commission batta; but he remained quiescent once again because his separate petition to set aside the ex parte decree also hence was rejected.
Learned counsel for appellant has referred to the common judgments in A. S. 371/24 and 280 and 549/51 where the position in favour of granting the defendants share has been accepted without discussion; also to the order in Purvatti Amma v. Raman Pillai, C. R. P. 75 of 1124: (AIR 1953 Trav-Co. 241) (H), where the matter is discussed and conceded. The question raised is very important and may frequently arise. I therefore refer the whole case to Division Bench.'
The Division Bench before which the Second Appeal was accordingly posted for Rearing, thought it more proper that a Full Bench should hear and dispose of it as invariably most decisions of the Travancore High Court bearing on the question were by Full Benches of three or more Judges. This is how the case happened to be heard by us.
4. Since the above orders were made bythe learned Single Judge and the Division Bench, the question that we have to decide here, namely, whether the defendant who files a written statement claiming his share obtains astatus of division by such act and whether that would confer on that person an alienable and heritable share in his tarwad properties has been the subject of decision in Lekshmi Pillai v. Narayanan, ILR (1955) Trav-Co 1290: 1956 Ker LT 54 (I) by two learned Judges of this Court (T. K. Joseph and N. Varadaraja Iyengar JJ.) well conversant with Travancore case law. They answered the question in the affirmative and held that the decision in Krishna Pillai v. Padmanabha Pillai (G), had settled the question in accordance with the view taken by them.
5. The uniform view taken in Cochin was that after compulsory partition was introducedamong Nayars by legislation the severance of the joint status of a member of a Nayar tarwad would be brought about by an unambiguous indication such as a declaration by one member to separate and that division by metes and bounds was only the working out of the rightcreated by the severance. After all the conflict there was in the Travancore High Court about this question, if the last among the casesdepended upon by the lower courts for theirdecision, namely, Krishna Pillai v. Padmanabha Pillai (G), decided that the written statement by a defendant claiming his share would bring about a severance of status so far as he is concerned, it is unnecessary for us here to examine the earlier decisions in Travancore.
The sequel would show that earlier decisions of the Travancore-Cochin High Court had decided the question in accordance with the view taken in Lekshmi Pillai v. Narayanan (I), but before we refer to them, the facts of that case and the decision given there may be examined in some detail. As set out in the earlier partof the head-note to the decision the facts are:
'One Easwari Pillai who was the 7th defendant in a suit for partition in a Nair tarwad filed a written statement claiming her share. Subsequently the parties compromised the matter by entering into a partition arrangement out of court and on a joint petition by all concerned the suit was struck off the file. After filing of the written statement but before thecompromise Easwari Pillai made a gift of her share to the plaintiff. Later after the compromise she made another gift of her share to the 2nd defendant'.
The question for decision was whether Easwari Pillai had attained a divided status at the time of the first gift and whether she had atransferable right to her share at that time. Paragraph 5 of the Judgment in that case delivered by Varadaraja Iyengar J., sets out in clear terms the purport of the decision in Krishna Pillai v. Padmanabha Pillai (G), and that may usefully be quoted here:
'The short question that arises for consideration is whether Easwari Pillai had attaineddivided status in her tarwad by the filing of herwritten statement claiming the allocation of her share in the partition suit O. S. No. 77 of 1105. Now it is conceded by both sides that the Full Bench decision in Krishna Pillai v. Padmanabha Pillai (G), may be taken to settle the question of the status of a defendant who has claimed his share by filing written statement in a partition suit. Justice Govinda Pillai at page 637 of the report observed that
'The defendant when he filed the written statement and claimed his share would get an inchoate right to the same and this right would take a full fledged shape with the passing of the preliminary decree.'
It is not clear from this observation whether the division of status which, without doubt, is attained at the date of the preliminary decree speaks retrospectively as from the date of the written statement. But Padmanabha Kukkillaya C. J., who concurred with Justice Govinda Pillai in that decision, expressed his definite view that the defendant who files a written statement becomes separated in status on the date of the filing of his written statement. After quoting the observations of Krishnaswami Iyer C. J., in Parameswaran v. Karthyayani Thankachi, 1943 Trav LR 743 (J), that the status of separation starts from the date of the filing of the suit so far as the plaintiff was concerned, the learned Chief Justice went on to say at page 659:
'But it appears to me that the principle should be applied to all those cases where a party seeks his share. The legal effect of seeking a share is the same whether it is a plaintiff that seeks, or a defendant who seeks through his written statement. After all in a suit for partition every party who claims a share whether as plaintiff or defendant on the party array can be regarded as a plaintiff in so far as his claim for his share is concerned.'
The Court takes it that Krishna Pillai v. Padmanabha Pillai (G), is authority for the position that the defendant in a partition suit becomes separated in status by the filing of the written statement, so much so Easwari Pillai may not have been incompetent to execute Ext. A settlement deed on the date it was executed.'
No doubt Sankarasubba Aiyar J., one of the three Judges who constituted the Pull Bench in Krishna Pillai v. Padmanabha Pillai (G), dissented from the view his two colleagues took in the case, but a reference to his judgment would show that he felt obsessed by the rule of stare decisis and thought that the earlier decisions should be sustained even though they may not be very logical or very correct. The head-note to that decision setting out the views of Sankarasubba Aiyer J., reads:
'There ought to be finality in matters relating to the personal law of communities and courts ought not to interfere lightly with decisions which have laid down the law in a certain manner, merely on superior considerations, especially when such considerations had been in the minds of the Judges when they rendered the decisions.
On the principle of stare decisis one is unwilling to differ from Janaki Amma v. Narayanan Tampi. 57 Trav LR 1082 (K), and following that it is held that the 1st defendant cannot be held to have attained a divided status merely because he filed a written statement demanding his share. The word 'partition' in Section 39 is used in contradistinction to the words 'claim to partition' in Section 33, thus indicating that 'a claim to partition' is different from partition'.
The Judges of the Travancore-Cochin High Court had no similar reason to take a view knowing it to be illogical or wrong. To them (and to us) the decisions of the Travancore and Cochin High Courts have only a persuasive effect and when the concerned decisions themselves say that the view taken in them is not very logical and are only by way of attempts to reconcile conflicting ideologies, it is needless to observe that their persuasive value amounts to little or nothing.
6. The Cochin Courts had consistently taken the view that after the right of partition was introduced among the Marumakkathayam communities by legislation, it was possible for a member of Marumakkathayam tarwad to bring about a divided status for him by an unilateral declaration of his intention to do so. We shall In this connection refer only to two cases. The earlier one Rugmani Amma v. Kalyani Amma, (1925-26) 17 Cochin LR 72 (L), is a decision by a strong Bench of three Judges of the Chief Court of Cochin, perhaps the strongest that Court ever had (Varugis C. J., Narayana Menon and Krishna Menon JJ.)
There, pending a suit for partition among the members of a Nair tarwad, one of the defendants who in her written statement in the suit had claimed her share separately died after having bequeathed her share to the plaintiffs in that suit. The plaintiffs thereafter got the plaint amended by claiming her share also and the lower court granted them a decree for that share as well. The defendants who had opposed the amendment appealed against the decree and contended that the will of the deceased defendant was inoperative as she had not a separated individual share in the tarwad properties to be disposed of by it.
Krishna Menon J., who delivered the leading judgment in that case, reviewed the relevant Privy Council and other decisions bearing on the question and held that a definite and unambiguous indication by one member of his intention to separate will amount to a division in status. It was pointed out that severance of status is a matter of individual volition and as such nothing more than a declaration of the individual manifesting his intention to exercise it was necessary to bring it about and that the communication of the same to the other members was unnecessary and purposeless. Accordingly the deceased defendant's bequest to the plaintiffs in the suit was held to be a valid one.
Narayana Menon J., agreed with Justice Krishna Menon's views and in concluding his Judgment stated that an 'open expression in court, of the intention, in the written statement, on the date of the first hearing of the suit, when the other co-owners were presumably present or were expected to be present either personally or through representatives, will involve a sufficient communication of such expression to the other members.' Varugis, C. J., in agreeing with his colleagues stated:
'There can be no doubt that an unequivocal end clear intention to divide effects a severance of interest. The question whether that expression of intention should be communicated to the co-sharers has not been expressly decided in any of the Privy Council Judgments referred to, and has given rise to a conflict of opinion in India, though the cases dealing with it were extremelyfew. I will go so far as to say -- and it is sufficient for the purpose of the present case -- that a declaration of such an intention made in the written statement of a defendant co-sharer in a suit for partition is a sufficient publication of the intention to effect a severance of interest.'
7. It may here be observed that the position in the case before us might be considered to be slightly different inasmuch as the factum of Raman Pillai, defendant 2 in the prior suit for partition (O. S. No. 1044 of 1114) having filed his written statement in the case claiming his share was left unnoticed for some time by all concerned and he was even declared ex parte. However, the communication Of his intention to divide, if it were needed, certainly came later when pursuant to the written statement filed by him he applied in the final decree proceedings for a division of his share and also sought to have the ex parte order vacated.
Those motions were opposed by the defendants who claimed to be joint with him notwithstanding the preliminary decree for partition in favour of the plaintiff in the suit. In our view, the case is indistinguishable from Rugmani Amma v. Kalyani Amma (L), and Lekshmi Pillai v. Narayanan (I), as the written statement of Raman Pillai claimed his share and that was afterwards brought to the notice of the defendants interested in opposing a share being granted to him.
8. The other Cochin case we would refer is a Pull Bench decision of the High Court of Cochin presided over by Krishnaswami Iyengar C. J., of which one of us was a member. That decision is Mohammath Ismal Ravuthar v. Samukutta Menon, 37 Cochin LR 294 (M). There one member of a Nayar tarwad issued a notice to his Karnavan demanding that his share in the tarwad properties should be divided and made over to him. After issuing such a notice he transferred his share in those properties to the plaintiff-appellant in the case and in discussing the question whether the notice demanding partition had effected a severance of status the learned Chief Justice observed:
'That a notice like the one issued by him is capable of effecting a severance of status so far as he was concerned appears to be established by several decisions of this Court, of which it is sufficient to refer to Rugmani Amma v. Kalyani Amma (L). The Pull Bench of this court which decided the case applied the principle of the decision of the Privy Council in Girja Bai v. Sadashiv Dhundiraj, ILR 43 Cal 1031 : (AIR 1916 PC 104) (N), to severance of status in a Malabar tarwad.'
The learned Chief Justice then quoted the head-note to the decision in Rugmani Amma v. Kalyani Amma (L), and after further referring to the Privy Council case mentioned in the above quotation and citing certain passages therefrom, went on to say:--
'It is clear from these passages that when we speak of partition, in law the expression means really a severance of the joint status An pctual division by meter and bounds as 'he Privy Council expressed is merely a resultant of the severance, to be worked out either by agreement of the parties or if that fails by approach to the court. That being so it is clear to our mind that when Section 62 of the statute viz., the Cochin Nayar Act XXIX of 1113, refers to 'partition' it refers and should be taken prima facie to refer to the division in status and not to the effectuation ofthat division in terms of a partition by metes andbounds.'
It may here be pointed out that Section 62 of the Cochin Nair Act XXIX of 1113 is word for word the same as Section 39 of the Travancore Nayar Act II of 1100.
9. Two other cases, where from facts and circumstances similar to those in the present case, Courts arrived at the same conclusion as we have come to as to severance of status may now be referred to. One of them is an early Calcutta case, Mt. Vate Koer v. Rowshun Singh, 8 Suth WR 82 (O), cited with approval by Krishna Menon J., in Rugmani Amma v. Kalyani Amma (L). There Kemp and Glover JJ., had to consider whether according to the Hindu Mithakshara Law the declaration of an intention to become divided in estate amounts to a valid separation, though not immediately perfected by an actual partition, of the estate by metes and bounds and the learned Judges answered the question in the affirmative.
The suit was for confirmation of possession and for determination of a right of inheritance by setting aside a deed of gift and a mokurruree lease. The plaintiff alleged that the family was joint and undivided, but the defendants on the other hand asserted that their donor and lessor, Sohun Singh, had separated himself from the family. The following extract from that decision which is seen quoted in Rugmani Amma v. Kalyani Amma (L), affords instructive reading:
'Taking, then, the admitted facts of the case before us, we find that Sohan Singh did publicly and unequivocally by petition presented to Court declare his intention to become from that date divided in estate. Such an intention amounts to a valid separation, though not immediately perfected by an actual partition of the estate by metes and bounds. The acts and declarations of Sohun Singh, showing an unmistakable intention to hold and enjoy his own estate separately and to renounce all rights upon the shares of his co-parceners, constitute, in our judgment, a complete severance or partition. The community of interest and unity of possession, which are the very essence of a joint Hindu family, no longer existed.'
The other case is Ram Narain v. Mt. Makhna, AIR 1939 PC 174 (F), where their Lordships of the Judicial Committee held that if a co-parcener, or if he is under disability, any person entitled to act for him, demands separation of his share in a pending suit for partition, there is a severance in status even though no relief is granted by the decree. A case more apposite to the present case can hardly be found in the books though surprisingly enough it was not cited at the Bar. There, two out of the four Hindu brothers and the son of one of them sued the two other brothers for a division of the family estate.
The defendants--brothers both filed written statements, but no claim was made by either for partition as between themselves. After the preliminary decree directing the division of the properties into two, that is, between the plaintiffs and the defendants, on behalf of one defendant brother who was then insane, his wife as guardian ad litem presented a petition to the court praying that her husband's share, namely, one-fourth, should be separated as she apprehended there would be loss in future if the said share is allowed to remain joint. Though the other three brothers objected to the prayer being granted, the trialcourt allowed it and in the final decree for partition one-fourth share was allotted to the insane brother.
From this decree, the other defendant and his minor son appealed to the High Court and during the pendency of the appeal the respondent died and his wife, the former guardian ad-litem, was brought on the record of the appeal in the place of her husband. The High Court allowed the appeal holding that after the preliminary decree the trial court was not competent to entertain an application to separate the share of one of the defendants, but it was left open for future adjudication in appropriate proceedings as to what the legal effect of the application of the guardian ad litem upon the status of the family property or the constitution of the family qua the two brothers.
Pursuant to the final decree of the trial court the widow had got possession of the property and also got mutation effected in her name. The successful appellant before the High Court had therefore to bring a fresh suit to determine whether the deceased brother died divided or undivided from him and the plaintiffs in the former action. The suit was dismissed by the trial court and the decision was affirmed by the High Court. In dismissing the appeal to the Privy Council and in affirming the decisions of the two courts below, Sir George Bankin, who delivered the judgment of the Judicial Committee, referred to the previous decisions of the Board in these terms:
'The right of a member of a Hindu family Who is sui juris to separate himself in estate and interest by declaring this intention was thus stated by Sir George Lowndes in Bal Krishna V. Ram Krishna, 58 Ind App 220 at p. 224 : (AIR 1031 PC 154 at p. 155) (Q).
It is now settled law that a separation may be effected by a clear and unequivocal intimation on the part of one member of a joint Hindu family to his co-sharers of his desire to sever himself from the joint family. This was laid down in Suraj Narain v. Iqbal Narain, 40 Ind App 40 (PC) (It). The question was further examined in 43 Ind App 151: (AIR 1916 PC 104) (N), and the principle was reaffirmed, and the last mentioned case was followed in Kawal Nain v. Prabhu Lal, 44 Ind App 159 at p. 161: (AIR 1917 PC 39 at p. 40) (S), where Lord Haldane says: 'The status of the plaintiff as separate in estate is brought about by his assertion of his right to separate.'
10. The trend of these decisions is decidedly to the effect that when a member of a joint Hindu family or a Marumakkathayam tarwad makes a clear and unequivocal declaration of his intention to separate himself from the remaining members of the family or the tarwad, as the case may be, without more, the needed severance Is effected. In Rugmani Amma v. Kalyani Amma (L), at a time when there was no definite authority to that effect, even though not whole-heartedly supported by his colleagues Krishna Menon J., took this view.
Analysing the then available privy Council decisions on the point, the learned judge definitely stated that there was no decision of the Judicial Committee holding that the cnmmunication of the intention to the other members was a necessary pre-requisite to effect a severance. Several passages from the judgment of Mr. Ameer Ah in Girja Bai v. Sadashiv Dhundiraj,referred to there as 37 Ind Cas 321: (AIR 1919PC 104) USD, were quoted to show that the Judicial Committee had not made the communication to other members a condition precedent to bring about severance in status and pointed out that several High Courts in India had misunderstood the Privy Council decision.
Varguis C. J., definitely stated in that case that there was paucity of authority on the point, but more than a quarter of a century afterwards it is interesting to notice that there is a wealth of Indian case-law on the subject and that in Katheesuma v. Beechu, 1949-2 Mad LJ 268: AIR 1951 Mad 561 (T), Viswanatha Sastri J., had in pronouncing his opinion on the question of law arising in the case after Satyanarayana Rao and Panchapagesa Sastri JJ., who first heard the case, differed in their conclusions, expressed the same view as Krishna Menon J., did in Rugmani Amma v. Kalyani Amma (L), about the scope and amplitude of the decision in Girja Bat v. Sadashiv Dhundiraj (N).
The quotations made by the learned Judge (Viswanatha Sastri J.) from the Privy Council decision are the same as Krishna Menon J., made in Rugmani Amma v. Kalyani Amma (L), to elucidate his point of view. Viswanatha Sastri J., has not only reviewed the decisions of the Privy Council and the Indian High Courts bearing on the question, but also discussed the texts of the Hindu law bearing on the subject. We would presently be taking the liberty to quote extensively from the judgment of that learned Judge, but before that it may be pointed out that the case arose out of a suit for partition between Mappillas governed by the Mappilla Marumakkathayam Act, 1938 (Madras Act XVII of 1939) and the question was whether a memberof a tarwad governed by the Marumakkathayam law as enacted in the said Act became divided in status by issuing a notice of his intention to separate to the karnavan of the tarwad without issuing notice to the other members.
Having regard to the form of the question framed by Satyanarayana Rao J., for expression of opinion by the third Judge before whom thecase was to go, it was argued before Viswanatha Sastri J., that it raised two distinct issues, namely:
'(a) Should notice be given to the other members of the family of the intention of an individual member to separate himself from the family in order to bring about a division in status between him and the other members?
(b) If notice of such an intention has to be given to the other members, is a communication to each and every one of them necessary or is notice to the head of the family sufficient to effect a severance?'
The conclusions of the learned Judge of those issues are to be found at pp. 289 and 290 of Mad LJ: (at p. 568 of AIR), reports and as indicated earlier we quote that here:
'Prom the foregoing discussion it will be observed that there is no decision of the Privy Council which has gone to the length of holding that where there has open 'a definite and unambiguous indication' or 'a clear and unequivocal declaration' by one member of his intention to separate, nevertheless, there is no severance in status unless, and until notice of such intention or declaration has been communicated to the other members of the family.
Nor does the Judicial Committee invariably insist upon a communication or notice to theother members of the family of the intention of one member to divide himself from the others. It must, however, be conceded that when they do refer to a notice or communication or intimation of the intention to divide, they refer to an intimation to the other members of the family.
In the case of a severance in status brought about by conduct -- and it has been repeatedly recognised by the Privy Council that it can be so brought about -- there is no question of a notice or communication of the intention to divide. The texts quoted by me regard the unilateral decision or the individual volition and desire of a member of the Joint family as the crucial severing factor, the indication, manifestation, or publication of such intention being merely evidentiary. In other words, notice or communication of an individual's intention to divide, to the other members of the family, is neither a condition nor a pre-requisite of the severance in status, but is only of evidentiary value and importance. Partition does not create title in the coparcener or give him a right to his share.
It only enables him to obtain what is his own already. Notice of an intention to become divided is not the root of title and is not like a notice to quit which is a condition precedent to the accrual of the right or an integral part of the cause of action itself. The other members of the family have no voice in the matter. They cannot veto the declaration of the member. They cannot resist his determination. If you impose a condition that it is only if all the other members of the family are duly notified of the intention of an individual member to divide, there could be a severance in status so far as he is concerned, you are imposing a clog or fetter on the right of the individual member.
You are abrogating pro tanto the 'unilaterality' of the doctrine of unilateral declaration. At the same time it can easily be realised that it is of vital interest of the other members of the family to be sure of their position vis-a-vis the dividing or outgoing member. Therefore it is that the declaration of intention to separate must be clear and unequivocal, expressed in such a form that it would not be open to the separating coparcener afterwards to say that he still continues to be a member of the joint family. It is for this reason that an outward manifestation or clear indication of an intention to divide is also required. Suppose a man registers a document declaring that he is a divided member or publishes a notice to that effect in the newspaper.
Is it to be said that he has not become divided in status simply because his coparceners have not been individually notified of his intention? The only reasonable rule that can be deduced from the texts and the several decisions of the Judicial Committee is that the declaration of an intention to divide on the part of a member of the family should be clear and unequivocal and should be indicated, manifested or published in such a manner as is appropriate in the circumstances of the case, One method, but not the only method, of such manifestation or publication is by delivering a notice containing a declaration of intention to become divided to the other members of the family.'
Further at page 292 (of Mad LJ): (at P. 570 of AIR), of the report the learned Judge went on to say.
'The only logical rule furnished by the texts of Hindu law as interpreted by the decisions of the Privy Council, appears to me to be that a unilateral declaration of an intention to become divided on the part of a member of a joint Hindu family effects a severance in status. The declaration must be clear, unecuivocal and unambiguous. There must be some manifestation, indication, intimation or expression of that intention to become divided, so as to serve as authentic evidence in case of doubt or dispute.
What form that manifestation, expression or intimation of intention should take would depend upon the circumstances of each case, there being no fixed rule or rigid formula. The despatch to or receipt by the other members of the family of a communication or notice announcing the intention to divide on the part of one member of the family, is not essential nor its absence fatal to a severance in status.'
11. A still later case where it has been held that when a Hindu coparcener desires to sever his joint status, it is not necessary for him to give notice to the other coparceners of his severance or indicate his desire to them is a decision by Govinda Menon and Ramaswami JJ., in Abdul Basith Sahib v. Shanmugasundaram, 1956-1 Mad LJ 513 (U). The relevant portion of the head-note to that case reads thus:
'It is now well settled that if a co-parcener desires to sever his joint status, it is not necessary for him to give a notice to the other coparceners of his severance or indicate his desire to them. A declaration made by him in a document or any other proceeding, showing unequivocal intention to became separated from the family or treat himself as a separated member from a particular date is enough to create a division in status. The declaration must be clear, unequivocal and unambiguous. There must be some manifestation, indication, Intimation or expression of that intention to become divided so as to serve as automatic evidence in case of doubt or dispute'.
As the point is not very relevant for the purpose of this case it is unnecessary to refer to that case at greater length or to refer to the authorities cited there.
12. One further aspect we desire to refer to before referring to the Travancore-Cochin case-law helpful to the decision of the present case is that the extension of the Hindu law doctrine of severance to Marumakkathayam tarwads after legislation gave individual members or tavazhis thereof the right of partition is one recognised not only by the decisions of the High Courts of Travancore and Cochin and Travancore-Cochin, but also by Madras decisions. See Kunchi Amma v. Minakshi Amma, AIR 1936 Mad 155 (V), where the rule was applied to parties governed by the Madras Marumakkathayam Act, XXII of 1933.
It was extended to the Mappillas governed by the Mappilla Marumakkathayam Act, 1938 (Madras Act XVII of 1939) in a case already cited, namely, Katheesuma v. Beechu (T). A further extension of rule is seen made to the followers of the Aliyasanthana law governed by the Madras Aliyasanthana Act (IX of 1949). See Mahalinga Shetty v. Jalaia Shodthi, 1956-2 Mad LJ 446 (W).
13. In the Travancore-Cochin High Court in Janaki Amma v. Padmavathi Amma, 1950 Ker LT 334: (AIB 1951 Trav Co. 13) (X), which was a case from the Cochin area, Sankaran andGovinda Pillai JJ., held that if a member of a Nayar tarwad demands his share in the tarwad properties, that would constitute 'partition' and would entitle his legal representatives to claim his share after his death. Govinda Pillai J., who delivered the decision of the Bench pointed out that in Cochin the law on the question was so well-settled that if a member of a Nayar tarwad expresses in unequivocal terms his intention to get himself separated from the other members, that would amount to 'partition' so that he can claim his share in the tarwad properties.
In another ease reported in the same volume -- Kesava Pillai Velayudhan Pillai v. Krishna Pillai Govinda Pillai, AIR 1951 Trav-Co. 155 (Y), Kunhi Raman C. J., and Subramonia Iyer J., held that the plaint in a suit for partition is not merely evidence of an intention to divide, but it is a formal demand for partition which is an act in the law and which creates a division in status.
14. In AIR 1953 Trav-Co. 241 (H), Subramonia Iyer J., sitting alone followed the decisions in Janaki Amma v. Padmavathi Amma (X) and Kesava Pillai Velayudhan Pillai v. Krishna Pillai Govinda Pillai (Y), in preference to some earlier rulings of the Travancore High Court depended upon by the two lower courts in this case. That case has great resemblance to the present one. In a suit for partition defendant 1 thereto had filed a written statement claiming his share separately from the rest of the members of the tarwad. However, in the preliminary decree that was passed, no provision wag made for granting any share to him. It was confined to the share claimed by the plaintiffs.
Defendant 1 died after the preliminary decree and his wife and children, who were his heirs, sought to be impleaded in his stead in order that they might claim the share that the deceased defendant was entitled to but on the opposition of the plaintiffs they were refused to be brought on the record by the trial court. The ground of the rejection of their prayer was that as the preliminary decree did not provide a share for defendant 1, he had no separate or heritable interest in the tarwad properties notwithstanding the claim put forward by him in the written statement for a share of those properties. The court placed reliance on some of the Travancore decisions cited earlier in this judgment. In setting aside the lower court's order and allowing the prayer of the wife and children to be impleaded in the suit, the learned Judge stated thus:
'On the question as to whether a declaration of intention unequivocally expressed by a person entitled to a share in the tarwad property would create a divided status between himself and the remaining members of the tarwad, this Court has taken the view that it will, and that it is unnecessary that there should have been a declaration of his right to a share made by a preliminary decree to bring about that result. A Division Bench of this Court took the view in Janaki Amma v. Padmavathi Amma (X).
A later Division Bench also took the same view in Kesava Pillai v. Krishna Pillai (Y). Indeed the position that a defendant claiming a share in his written statement would become divided in status from the remaining members of the tarwad as a result of that declaration of intention to divide was not canvassed before me, in view of the aforesaid decisions of thisCourt, whatever might have been the view held by the erstwhile Travancore High Court.
If defendant 1 became divided in status from the remaining members of the tarwad on account of his having filed a written statement claiming a share, then he had thereafter a separate interest in the tarwad properties which will devolve upon his heirs who are, in this case, the applicants before the Court below, and the petitioners in this revision before this Court ............................ The result is that the orderpassed by the Court below rejecting the application of the wife and children of the deceased defendant 1 to come in as his legal representatives cannot be supported .....................'
Yet another decision of the Travancore-Cochin High Court bearing on the question is Madhavan Pillai v. Gopala Kurup, AIR 1954 Trav-Co 433: (1954 Ker LT 934) (Z). There the real question was whether defendant 1, the Kar-navan of the tarwad had really claimed his share in his written statement. The proposition that there would be severance in case he made a claim would seem not to have been questioned at all. Paragraph 4 of the judgment is instructive and we will quote that here:
'The rule that a member of a Hindu Joint family becomes divided in status on his expression 'of an unequivocal declaration Of intention to get severed from the other members of the family will have the effect of creating a division in status as between him and the rest of the members of the family has been applied to Malabar tarwads after compulsory partition was provided for by statute. The 1st defendant could on the date of his written statement, admittedly claim a share and therefore was entitled by a declaration to create a divided status as between himself and the other members of the tarwad. A plaint, or a written statement, in a suit for partition has been held sufficient to create a division in status.
'If upon a proper construction of a written statement it contains an expression of such a fixed desire to sever, there is no reason why it should not effect a separation in the same manner as a plaint in a partition suit does.' --Mayne on Hindu Law and Usage, Eleventh Edition p. 552.
In the next paragraph the learned Judges considered the contents of the written statement and held that the statements there were sufficient in law to create a divided status. Later on in the judgment, Section 39 of the Travancore Nayar Act IT of 1100 has been construed by the learned Judges and they said that the Section-
'means only that no member has an alienable or heritable interest so long as the family continues joint. Disruption of the joint status tantamounts to partition within the meaning of that section. The contention of learned counsel for the plaintiff-respondent that nothing short of actual division would amount to partition cannot be accepted, because, had that been the legislative intent, the expression apt and appropriate to indicate it would have been used instead of the words 'definite share in tarwad property' and 'alienable or heritable interest therein'. If the contention were to be correct, Section 39 would have to be redrafted somewhat as follows:
Until allotment of properties at a partition in the Tarwad, no part of the tarwad property is liable to be seized in execution nor shall such member be deemed to have any alienable or heritable part thereof.'
This being our view, we do not consider whether, as contended on behalf of the appellant, thepreliminary decree passed in this case grants shares not merely to those who had claimed butalso to those who were competent to claim, including the 1st defendant who was undoubtedly competent.'
On the whole there is large preponderance of judicial opinion in favour of the view that a claim in a written statement by a member of a Marumakkathayam community, to whom the right to compulsory partition of his share in the family property has been extended by legislation, would effect a severance of status for him from the rest of the family. As explained in Lakshmi Pillai v. Narayanan Pillai (I), the Travancore High Court itself had taken that view in the decision in Krishna Pillai v. Padmanaba Pillai (G).
In Cochin, Rugmani Amma v. Kalyani Amma (L), definitely took that view and the Travancore Cochin decisions also go the same way. So early as 1867 the Calcutta High Court had taken that view regarding Hindu coparceners (Mt. Vate Koer v. Rowshun Singh (O)), and the Privy Council said the same thing in Ram Narain v. Mt. Makhna (P).
15-16. In this case there was a written statement by Raman Pillai in the suit brought by another member of the tarwad claiming his share. Even though that written statement was left unnoticed at the time of the preliminary decree, he had pressed his claim for division during the subsequent stages of the suit though unsuccessfully. If a communication to the remaining members of the tarwad of the unequivocal declaration of the intention of one member to separate from them is a necessary pre-requisite, the written statement in the case together with the subsequent applications for a share and the application to set aside the ex parte (preliminary) decree, constitute both the needed declaration and the communication thereof to the rest of the members.
The lower courts were therefore wrong in dismissing the plaintiff's suit and in reversal of judgments and decrees of those courts we make a preliminary decree in favour of the plaintiffs and defendant 7 for division of the tarwad properties of Raman Pillai and delivery to them their one-seventh share. They will be entitled to their share of the mesne profits of the properties from the date of the institution of the suit. The rate of profits will be fixed by the trial court.
17. In the circumstances of the case the partieswill bear their costs incurred up till now in allthree courts. Costs to be incurred hereafter inthe proceedings for passing the final decree willbe provided for by the trial court. Decree accordingly.