Srinivasa Aiyangar, J.
1. This action was brought for a declaration that certain immoveable properties attached by the 1st defendant, in execution of a decree obtained against the second (a brother of the plaintiff) did not belong to him, but to the plaintiff. The plaintiff's case is and that is found to be true by both the Courts below, that his two elder brothers the 2nd and 3rd defendants in the action were separated by his father Krishnaswami Naidu, that thereafter the plaintiff and his father continued to be members of a joint Hindu family, that one of the suit properties belonged to them as ancestral property and the other was acquired by them and became joint family property and that neither of his two brothers had any interest in them. Originally the 1st defendant the holder of the decree against the 2nd defendant was alone made a party to the action. There was an appeal by him to the District Court, Coimbatore and the then District Judge directed the brothers of the plaintiff to be made parties and remanded the suit to the 1st Court to take the evidence which may be let in by the brothers after they had been made parties. This was done and the appeal was finally decided against the 1st and 2nd defendants ; the 3rd defendant the other brother of the plaintiff disclaimed all interest in these properties. The 1st and 2nd defendants have jointly appealed to this Court and their learned pleader has raised two points in appeal.
2. First of all he contended that the evidence taken in the suit, before the 2nd defendant was made a party, should not have been used against him and relied on Section 33 of the Evidence Act. I think that there is no merit in this contention. The 2nd defendant, after he was made a party, was served with summons, took time and filed a written statement which was the same as that of the 1st, took an adjournment for letting in his evidence and on the adjourned day put in his evidence. He did not require that the evidence previously taken should be reheard, nor did he desire a trial de novo of the suit as against him. When the appeal was heard in the District Court he again took no objection to the evidence already taken in the case being considered against him. It is clear that the 1st defendant represented his interest in the previous stages of the proceedings and he was fully cognizant of the steps taken by him to prove their common case. In fact he himself gave evidence at the previous trial and the present appeal is a joint appeal by the 1st and 2nd defendants on the same grounds. In these circumstances I think he is not now entitled to take that objection and Section 33 of the Evidence Act has no application to this case.
3. The other point taken is that there having been a separation of the 2nd and 3rd defendants, in law, there was a separation in status between the plaintiff and his father and unless there was proof of a subsequent reunion, the plaintiff and his father must be deemed to have been holding the suit properties as tenants in common, in which case the father's share (now that he is dead) would devolve on his sons including the 2nd and 3rd defendants in equal shares. It was slso stated that the appellants were in a position to prove that the plaintiff at the time of the separation of the brothers was a minor and was incapable therefore of entering into an agreement to remain united or to reunite after partition. I may observe at the outset that no such contention appears to have been raised in either of the lower courts and that the question for decision is really one of fact, whether or not the plaintiff and his father were members of a joint Hindu family ; though in arriving at a conclusion all presumptions whether of law or fact may have to be taken into account. But as however we have heard the learned pleader for the appellants at length I think it right to examine the question raised by him.
4. Reliance was mainly placed on the observations of their Lordships of the Judicial Committee in the case of Balabux v. Rukma Bai I.L.R. (1903) C. 725 wherein it is said, 'there is no presumption when one co-parcener separates from the others, that the latter remain united. In many cases it may be necessary in order to ascertain the share of the outgoing member, to fix the shares which the other co-parceners are or would be entitled to and in this sense the separation of one is said to be a virtual separation of all. And their Lordships think that an agreement amongst the remaining members of a joint family to remain united or to reunite must be proved like any other fact.' These observations do not, I think, lend any support to the contention of the appellants. There can scarcely be any doubt that one member of a family may separate himself from the rest leaving the others to continue as before as members of a joint Hindu family ; that this can be done even in cases where for the determination and allotment of the share of the member who separates it is necessary to ascertain and set out the shares of the remaining members. It is not correct to say that either in the first or the second case the separation of one member is in law necessarily a separation of the remaining members and that the remaining members if they desire to remain or become a joint Hindu family, they can only do so by an agreement to reunite subject to the limitations of the Hindu law regarding that status; for it will be observed that their Lordships contemplate a case where the remaining members agree to remain united which would be impossible if in law there was a necessary division in status; when once there is a separation, the joint family would cease to exist and an agreement to remain united could only be an agreement to reunite. The status of reunited members is not the same as that of the members of a joint Hindu family.
5. It was at one time doubtful whether the remaining members of a family can continue to be a joint Hindu family when there has been a separation of one of the members. In Sudersanam Maistri v. Narasimhulu Maistri I.L.R. (1901) M. 149 Bashyam Iyengar, J. says that ' if one or more members become divided by partition, it is not equally clear that the status of the remaining members as an undivided family in its normal condition continues unaffected. By some of the Hindu lawyers a separation, such as to give one or more members their several shares, is regarded as necessarily involving a general partition. Those who have not separated are on this theory, looked on as reunited (West and Buhler's 'Hindu Law', 3rd Edn., page 685). So far as this Presidency is concerned, though there is no reported decision bearing directly on the point, the principle generally recognised and acted upon is that though there can be no compulsory partial partition either in respect of the joint property belonging to the family or in respect of the persons constituting the undivided family, yet by mutual agreement of parties the partition can be partial either in respect of the property or of the persons constituting the family. And according to usage and custom the remaining members of an undivided family continue as undivided members in its normal state and not as members, who after partition have become reunited.' But the decision in Ram Pershad Singh v. Lakhpati Koer I.L.R. (1902) C. 231 has now settled the law in the sense indicated by Bashyam Iyengar, J. No doubt when a partition has been proved the presumption is that the partition was complete both as regards the property of the family and the members composing it; but this presumption may be rebutted without proof aliunde by the terms of the partition deed, or decree for partition and if there is no written evidence of the separation, by the nature and mode of separation and the circumstances attending it. In Ram Pershad Singh v. Lakhpati Koer I.L.R. (1902) C. 231 where there was a decree for partition Sir Andrew Scoble delivering the judgment of their Lordships observed as follows:--' It was contended on behalf of the appellants in the present suit that, although the decree in the suit of 1868 may have effected a separation quoad Tundan and Tukan, it left the plaintiffs united inter se; and that this might have been the legal effect of the decree is undeniable. But here again the conduct of the perties must be looked at, in order to arrive at what constitutes the true test of partition of property according to Hindu Law, namely the intention of the members of the family to become separate owners. ' The observations in Balabux v. Ruhmabai I.L.R. (1903) C. 725 do not in any way qualify the above statement; nor do the decisions of this Court in Gadian Chettiar v. Gadian Chettiar (1914) I.L.W. 799 Balakrishna Mudaliar v. Raju Mudaliar I.L.R. (1914) B. 293 and that of the Bombay High Court in Anandi Bai v. Hari Suba Pai I.L.R. (1911) B. 293 lay down anything to the contrary.
5. In this case there was no division of the family properties by shares. The evidence is (and that has been accepted by both the lower Courts) that the father incurred considerable expense for the marriage of the 2nd and 3rd defendants and had to sell two of the three houses which the family owned, to meet those expenses; that he gave some cash and jewels to them and separated them from the family; they thereafter lived separately while the plaintiff and his father lived together in the remaining family house. The transaction was a relinquishment by defendants 2 and 3 of their interest in the remaining family properties on receipt of a certain sum of money and certain moveables. In such a case as that, there is, I think, no basis for any presumption of a division between the plaintiff and his father. (See the observations of Bashyam Iyengar, J. in Sudersanam Maistri v. Narasimhulu Maistri I.L.R. (1901) M. 149 . Moreover the power of a father to separate one or more of his sons from himself is undoubted ; and if as in this case the father separated his two elder sons there is again no scope for any presumption of division as between the father and his other son. In many cases of division there may be minor members in the family whose interest it may be to remain undivided. If as contended by the learned pleader for the appellants, there can be no agreement by them or on their behalf to remain united and if in law there is necessarily a separation in status amongst all the members of the family by the separation of one, the consequences, so far as the minor members are concerned, may be disastrous. I disallow this contention also. In the result the second appeal must be dismissed with costs.
6. I entirely agree. I cannot read the judgment of the Privy Council in Balabux v. Rukma Bai I.L.R. (1903) C. 725 as laying down that where there is a separation at the instance of one member of a joint family an undivided status among the others can only exist by contract. This as pointed out by my learned brother is entirely inconsistent with the language used by the Board in Bam Pershad Singh v. Lahhpati Koer I.L.R. (1902) C. 231. If the true test is as laid down there ' the intention of the members of the family to become separate owners ', then it must be impossible for one member who desires to become a separate owner to compel the others who do not so desire to become separate from one another. It was fairly admitted in argument that the result of this contention would be serious for there are few Hindu joint families without minor sons. A minor cannot make a contract and their Lordships of the Privy Council say expressly in Balabux v. Rukma Bai I.L.R. (1903) C. 725 speaking of reunion : 'It is difficult to see how an agreement for that purpose could have been made by or on behalf of the appellant during his minority.' It wouldfollow therefore that a son who has attained full age could by a mere un-equivocal declaration separate not only himself but his father from his own minor children irrevocably until the children one after the other attained the age when they could make a contract of reunion. Not only that but the separated son could reunite with his father leaving the minor children separate. The right of an adult member to separate is not founded on any principle that requires such an injury to be inflicted on the minors but on the principle that he is entitled to be put in a position in which he can enjoy to the full the results of his own industry and exertions. The normal status of a Hindu family is however joint and although a father can separate himself from his minor sons it seems contrary to all principle that he should be compelled to do so against his will. Assuming that a presumption arises that the adult members desire all to become separate owners in the words of Bam Prasad Singh v. Lakhpati I.L.R. (1902) C. 231 I see no reason why such a presumption should be made as to a father and his minor sons. The minors obviously are incapable of expressing any such desires and there is no guardian of their property known to Hindu Law capable of making such a declaration for them. I am satisfied therefore that a definite declaration must be made by a father himself if he wishes to separate from his minor children and that it cannot be done by the mere fact of separation by a son of full age. This appeal will be dismissed with costs.