1. The plaintiff obtained a preliminary decree for partition which was confirmed with modification on appeal and died while a second appeal was pending. His legal representatives have petitioned to be brought on record and the petition is opposed on the ground that the plaintiff's share passed on his death by survivorship and that there is nothing for the representatives to succeed to. Whether this be so or not is a question to be decided in the appeal itself after hearing both sides. The legal representatives deny that the plaintiff's share passed by survivorship on his death and say they are entitled to be brought on the record for the purpose of contesting the point. We therefore overrule the objection and direct the legal representatives to be brought on the record.
2. On the main question it was held by this Court in Subbaraya Mudali v. Manuka Mudali I.L.R. (1896) M. 345, differing from Sakharam Mahadev v. Hari Krishna Dangha I.L.R. (1881) B. 113, that a decree for partition effects a severance of the joint family ; that this severance is not affected by the subsequent filing of an appeal from the decree. Our attention was, however, called to certain observations in Gorakala Kanakayya v. Janardana Radhi (1910) M.W.N. 841 (where the point did not arise for decision) in which Sakharam Mahadev v. Hari Krishna Dangha I.L.R. (1881) B. 113 was referred to with approval. We have accordingly reconsidered the question, but after listening to the able and exhaustive argument addressed to us by Mr. S. Srinivasa Aiyangar I see no reason to differ from the previous decision of this court. Partition may be effected by consent and in proper cases by decree. When it is effected by decree, I can see no reason why the decree should not hold good as other decrees do unless and until it is reversed. It is not a feature of our law, or any other legal system so far as I know, that the filing of an appeal should affect the operation of a decree; and unless the court intervenes to stay proceedings the property may be partitioned and distributed in the shares fixed by the decree before the appeal is finally determined, possibly years before in cases where there are a series of appeals. Where a decree for partition has been properly made and has directed the division of the property in appropriate shares, I can see no reason for altering this portion of the decree on appeal by reason of births or deaths afterwards supervening in the family. A partition by consent in certain shares when once made is not affected by subsequent births or deaths in the family and there does not appear to be any reason why it should be otherwise when it is made by decree.
3. The ordinary rule admittedly is that decrees which were right at the time they were passed are not varied by reason of events which subsequently happen, and I can see no reason why an exception should be made in the case of decrees for partition, or why partitions by decree should be put on such an unfavourable footing as compared to partitions effected by consent. Assuming alienees would not be prejudicially affected, it would still be a hardship to the parties themselves to make their rights on partition to depend on their surviving the appeal proceedings.
4. In Joy Narain Giri v. Girish Chunder Myiti I.L.R. (1878) C. 434 : S.C. 5 I.A. 228 their Lordships of the Judicial Committee after construing a decree of the District Court not then under appeal as a decree for partition observe : 'That being so, their Lordships are of opinion that although the suit is not actually in terms for partition, yet that the decree does effect a partition, at all events, of rights, which is effectual to destroy the joint estate under the doctrine laid down in the case,which has been quoted, of Appovier v. Ramasubba Aiyar (1866) 11 M.I.A. 75, where it was held that a mere agreement to divide effects a severance of the joint family without waiting for a partition by metes and bounds.' What their Lordships appear to lay down in the passage cited is that a decree directing partition has the same effect as an agreement to divide. In the particular case the decree-holder who had obtained the decree above referred to died while an appeal was pending to the Privy Council, but the decree was nevertheless confirmed by their Lordships on a judgment which is not reported. The report deals with two consolidated appeals, one against an order in execution of the previous decree and another against the dismissal by the High Court of an appeal from a decree of the District Court dismissing a fresh suit filed by the defendant in the previous suit on the ground that the previous decree had not served the joint family, and that consequently the property passed to him by survivorship on the death of the plaintiff in the previous suit. It does not appear to have occurred to any one in this hotly contested litigation that, assuming the first decree effected a severance, the subsequent death of the plaintiff pending an appeal made any difference. And assuming the law to be correctly laid down by their Lordships that the decree of the court of first instance effected a severance, there does not appear to be any reason why the subsequent filing of an appeal should be held to effect a reunion and justify the appellate court in making a fresh distribution of shares according to the condition of the family at the date of the decision of the appeal, and so depriving parties or their representatives of the shares originally allotted to them. In Chidambaram Chettiar v. Gauri Nachiar I.L.R. (1879) M. 83 which also came before the Privy Council, the District Judge tried the first issue as to whether the Zemindari was partible first, and in his judgment held that it was, and that, this being so, the plaintiff was admittedly entitled to partition. It was not clear if any decree or order had been drawn up on this judgment, but on appeal from the decree of the High Court affirming the final decree of the District Court, their Lordships held that the judgment of the District Judge on the first issue was equivalent to a declaratory decree and rendered the parties separate in estate, if they had not already been so, and that the subsequent death of the plaintiff before the final decree of the District Court did not make any difference or cause the suit to abate. Their Lordships, no doubt, observed that the defendant had not appealed from the judgment of the District Court on the first issue and appeared to have acquiesced in it, but these remarks were probably due to the fact already mentioned that no decree or order directing partition was forthcoming, and it does not appear that the result would have been different if these features of the case had been absent. The ruling in Sangili v Mookan I.L.R. (1893) M. 350 that the plaintiff's share must be determined with reference to the condition at the date of the final decree in the suit, is opposed to both of the Privy Council decisions above mentioned although the actual decision may possibly be supported on other grounds, as in that case the only decree passed by the lower court was set aside. As regards Sakharam Mahadev Dange v. Hari Krishna Dange I.L.R. (1881) B. 113 the decision rests on the proposition that the decree of the Subordinate Judge in that case did not operate as a severance so long as it remained under appeal For the reasons already given, I prefer to follow the decision of this Court in Subbaraya Mudali v Manicka Mudali I.L.R. (1896) M. 345, and dismiss the second appeal with costs.
Sankaran Nair J.
5. I agree and I have only to add that I believe the practice in this Presidency has always been in accordance with the law as laid down in Subbaraya Mudali v. Manicka Mudali I.L.R. (1896) M. 345.