1. The parties to the suit belong to a family of archakas and the history of the complications giving rise to the present suit dates back to the year 19.00. It appears that, in 1900, there were alive the 2nd defendant's two uncles, the son of one of whom is the 1st defendant, the other one having died childless. At that time the family considered themselves aggrieved by the behaviour of the present 2nd defendant, and an arrangement was made by which he granted a release of all his interest in the family property by a document which is Ex. A in the case. This document, Ex. A, has been considered by this Court in its Judgment remanding the case, and its effect is described as being that 'the 2nd defendant relinquished his interest in the family property by that document.' It is common ground that the effect of this relinquishment was to remove him from the joint family which thereafter consisted of his son and the other members of the family, It is to be noted too that in Ex. A itself the 2nd defendant said that when his uncles effected a division with his (2nd defendant's) minor son this deed would not affect the minor's equal share.
2. The next thing that happened was that in 1910 this document fix. A. was absolutely ignored and a partition was made between the 2nd defendant and the first defendant, the son of one of the uncles, the other having died issueless. In that partition the minor son was completely ignored, the 2nd defendant not even purporting to be acting on his (minor's) behalf. It is this document, Ex. I, which was relied on in the earlier stages of the suit. But with regard to that the High Court says as follows: 'In consequence of the prior document, Ex. A the son, the plaintiff, is not bound by the partition made between the 1st and 2nd defendants under Ex. 1.' It is conceded also that the basis of this decision was that, as Ex. A was binding and the 2nd defendant passed out of the family, he had no right to partition under Ex. 1. The High Court then directed the lower appellate court to determine certain issues as to certain specific properties and pass a preliminary decree for partition of what properties should be found liable to partition with an account of the debts and liabilities properly payable out of the family property.
3. The lower appellate court has found that Ex. 1 having gone, the property in the hands of the first defendant is family property in which the plaintiff, minor, is entitled to a share. The 1st defendant now seeks to put forward a case which he has never put forward before, that even if Ex. 1 did not operate as a partition he can claim a partition at or about the date of Ex, 1 and the way he puts it is this : that, as Ex. 1 indicates an intention by the 1st defendant to separate himself from the family, the court must find a valid partition between him and the plaintiff as from that date or somewhere about the same date. He further contends that the proceedings leading up to Ex. 1 were notice to the 2nd defendant, the father of the plaintiff. He relies of course, on the decision of the Privy Council in Suraj Narain v. Iqbal Narain 24 M.L.J. 345 as to the right of any member of a family to separate himself from the family by giving a notice to the other members. He further relies on the case in Kamepalli Ayilamma v. Mannam Venkatasamy : (1917)33MLJ746 which lays down that notice can be given even to a minor so as to bind the minor, the notice being properly given to the person who would, as soon as the partition is effected, become the natural guardian, and he contends that that person is the 2nd defendant. It seems to me that there are at least two answers to this contention, The first is that it reopens the case and goes into a matter which should properly have been agitated in the early stages of the case and should have been brought before this Court on the last occasion. In my opinion, it is not open to the 1st defendant to shift his ground, now that it has been found that Ex. 1 on which he relied for his partition is not binding on him. If he wished to set up that, whether there was a valid partition between the 1st defendant and the 2nd defendant in 1910 by virtue of Ex. 1 or not, the proceedings there constituted a valid partition between him and the minor, If Ex. I was not binding, he should have set that up in the early stages of the case and it should have been made the subject of an issue and been decided then. The next answer is this, that it is not open to a court to speculate. Admittedly the facts which were in the mind of the 1st defendant when he became a party to Ex, I are not the true facts as to the relation of the parties one to the other at the time. They thought that the release deed was ineffectual and that the 2nd defendant was entitled to' a share, and it was on that belief that the 1st defendant entered into this transaction, Ex. 1 as he himself admits, because he was displeased with the behaviour of the 2nd defendant. As already stated, Ex. I did not represent the true relation of the members of the family, and in my opinion it is not open to us to speculate as to what he would have done if he had known that he had already got rid of this 2nd defendant whose behaviour he disapproved. He might very well have thought that it was his duty or possibly to his advantage to have remained the managing member of the family consisting of himself and the minor. We cannot act on a supposition and this seems to me to be another sufficient answer to the case as now set up.
4. There is this third answer which is that this declaration must be unequivocal. It must be couched in such a language, or the behaviour must be such that the Court can draw no other inference from the circumstance than that the party did desire to separate himself from one whom it is now alleged that he did separate. I cannot say that we can find an unequivocal declaration in Ex. 1 or in the circumstance of the life which was led by these parties afterwards. It seems to me that where so important a fact as separation of a joint Hindu family is to be established by declarations we should be careful to adopt the very guarded language of the Privy Council as to the position being shown to be absolutely unequivocal before we allow such changes to be made by letters or statements of that kind. For these reasons I am satisfied that this Court cannot now declare that there was any partition between the first defendant and the plaintiff at or about the year 1910. The result is that the property remained joint family property.
5. The only question that remains is with reference to certain items of property. The first of the properties in dispute which appears to have been acquired was item 23 which together with 8 days pujaimorai is alleged to have descended to the 1st defendant from his father's maternal grandfather. The fact of this descent has been distinctly found by the lower appellate court and we cannot interfere with that finding. The judge has considered this to be coparcenary property on the authority of the decision in Venkayamma Gam v. Venkataramanayamma Bahadur Garu 12 M.L.J. 299. It appears, however, from a closer examination that Venkayamma Garu v. Venkataramanayamma Bahadhur Garu 12 M.L.J. 299 does not cover the case exactly for that was a case in which at the time the succession opened the claimants were ail maternal grand-children. In this case at the time the property devolved by the death of the mother, the 1st defendant's father alone was alive, the 2nd defendant's father being dead and so the members of the family claiming were the 2nd defendant and the 1st defendant's father. That being so it is contended on the authority of Vythinatha Iyer v. Yaggia Narayana Iyer I.L.R. (1903) Mad. 382 , that the great grand-child does not share the maternal grand-father's property and that the property only devolved on the 1st defendant's father, the 2nd defendant taking no interest in it. The basis of that proposition in Vythinatha Aiyar v. Yaggia Narayana Iyer I.L.R. (1903) Mad. 382 , is this, 'the grandson of an appointed daughter under the old law or of a daughter under the modern law is not regarded as equal to a son's son. In this view, the ordinary rule of Hindu Law would prevail and the nearer grandson would exclude the more remote grandson.' That is the ordinary rule under Hindu Law which was laid down in Venkayamma Gura v. Venkataramanayyamma Bahadur Garu M.L.J. 299, and Mr. Ananthakrishna Iyer for the respondents does not contest it. Accepting therefore the finding that this 8 days pujai morzi and item 26 are maternal grand father's property we must hold that the plaintiff is not entitled to any share in that, it having descended to the 1st defendant's father alone.
6. Then there is another 8 days mirasi pujari right which appears to have been purchased in the year 1912. This would presumably be joint family property because at that time the joint family existed, and it would lie on the 1st defendant to show that it was purchased out of his self-acquired property and that therefore the plaintiff was not entitled to a share. There is no suggestion of any such thing here, and we must hold that 8 days mirasi pujari right is joint family property subject to partition.
7. There is another small item 13 in the schedule to Ex. I which is item 24 in the plaint. With regard to this there is very little evidence at all. The lower appellate court had said that it is included in Ex. 1 which amounts to an admission that whether it was ancestral property originally or not, it has been treated as ancestral property, We think that in the absence of any other evidence this indication must be accepted and therefore this item 24 will be treated as joint family property.
8. The only other question argued was as to the sum of money which is alleged to have been spent on item 23 This question will not arise owing to the finding that this item 23, descended from the maternal grand-father and is therefore not partible.
9. The preliminary decree will be modified in accordance with the above directions. Each party will bear their own costs.
10. I agree and have nothing to add.