Viswanatha Sastri, J.
1.The plaintiff appeals against the decree of the Court of the Subordinate Judge of Devakottai, dismissing his suit for declaration of his title to a quarter share of a large residential house in Devakottai and for setting aside an adverse order of the Subordinate Judge dated 26th March, 1943, in E.A. No. 510 of 1942. This litigation has had an antecedent history to which a brief reference is necessary in order to appreciate the contentions in this appeal.
2. The parties to the suit belong to the Nattukottai Chettiar community. Ramanathan Chettiar the grandfather of the plaintiff was an affluent person owning considerable property and a money-lending business conducted through agents in several places in South India' and also in Rangoon and Saigon, with the vilasam of ' RM. M. ST. ' There was a branch of the business at Madras which received deposits, lent out monies and cashed hundies. Ramanathan Chettiar died leaving two sons, Chidambaram Chettiar and Vairavan Chettiar, on whom the entire family properties devolved by survivorship. The banking business was continued by his two sons till 1907 when Chidambaram Chettiar died and thereafter by Vairavan Chettiar himself till his death in 1937. Chidambaram Chettiar left a widow Valliammai. Vairavan Chettiar had an only son, the plaintiff, whom he gave away in adoption to Valliammai in 1924 when he was about 2 years of age. The factum and validity of this adoption are not in dispute. Vairavan Chettiar died on 22nd December, 1937, leaving two widows surviving him. Among,the family properties of RM. M. ST. was a substantial and costly residential building in Devakottai completed in 1925 at a cost of Rs. 3 to 5 lakhs, according to the different estimates given. The RM. M. ST. family consisting of Vairavan Chettiar and the plaintiff, who by reason of his adoption to Chidambaram Chettiar became the nephew of his natural father, Vairavan Chettiar, owned a half share in the building, two other families with the respective vilasams of ' L.A.R.' and 'M.L.M.' each owning quarter share.' The plaintiff claims in his own right one-fourth share out of the house which belonged to the RM. M. ST. family and this claim is the subject of the present litigation.
3. The defendant claims to have purchased the entire half share of the RM. M. ST. family in the building above referred to, including the plaintiff's share, in execution of the decree in C.S. No. 381 of 1929 on the file of this Court, obtained by him against Vairavan Chettiar. The genesis of the defendant's claim is as follows:
4. On 6th July, 1900, a sum of Rs. 7,000 representing the stridhana money of the defendant's mother was deposited in the banking business of RM. M. ST. Ramanathan Chettiar, the grandfather of the plaintiff, the said sum carrying interestat the Madras nadapu rate. The hundi evidencing this deposit is Ex. D-3. On 13th April, 1923, when Ramanathan Chettiar's son, Vairavan Chettiar was managing the banking business, the deposit in question had swelled with accretions of interest to Rs. 51,185-1-0 as shown by Vairavan Chettiar's letter, Ex. D-3 (a) dated 11th September, 1923. This sum was credited in the RM. M. ST. accounts to the defendant, his mother having died leaving him as her heir. On 21st October, 1925 Vairavan Chettiar conveyed some of the immoveable properties of the family under Ex. D-1 for Rs. 32,500 to the defendant in partial discharge of the amount due to him. The balance of the deposit remained unpaid and the defendant sued RM. M. ST. Vairavan Chettiar in C. S. No. 381 of 1929 on the file of this Court and obtained a de.cree originally passed exparte against Vairavan Chettiar, but subsequently set aside on Vairavan Chettiar furnishing security of the half share of the family in the house, the subject of the present dispute, to the extent of Rs. 40,000. The-suit C. S. No. 381 of 1929 was eventually decreed by consent on 29th November, 1932, against Vairavan Chettiar for Rs. 40,000 with subsequent interest at 6 per cent, from 29th Nevember, 1933, till realisation. It was a term of this consent decree that the half share of the house which had been giyen as security by Vairavan Chettiar in connection with his application to set aside the ex parte decree should continue as security for the realisation of the amount decreed by consent as aforesaid.
5. Vairavan Chettiar died, as already stated, on 22nd December, 1937. In E.P. No. 253 of 1938, the defendant applied to this Court for execution of his decree in C. S. No. 381 of 192.9, by bringing on record the plaintiff as well as the two widows of Vairavan Chettiar as his legal representatives, and for transmission of the decree to the Court of the Subordinate Judge, Devakottai, for execution against the half share of the house given as security under the decree. The plaintiff objected to his being brought on record on the ground that he became divided from Viravan Chettiar, his uncle, before the date of the suit, C. S. No. 381 of 1929, and that his quarter share of the house was unaffected by the security created by the consent decree and could not therefore be sold in execution of the decree against Vairavan Chettiar. The Master overruled this objection, brought the plaintiff on record as a legal representative of the deceased Vairavan Chettiar along with his two widows and ordered transmission of the decree to the Court of the Subordinate Judge, Devakottai, for execution. The order of the Master is Ex. D-7 dated 4th September, 1941. An appeal filed by the plaintiff from the order of the Master to this Court was withdrawn by him without prejudice to his raising his contentions in a separate suit, Ex. P-39, dated 12th January, 1942. The defendant thereupon filed E.P. No. 94 of 1942 in the Court of the Subordinate Judge, Devakottai, for sale of a half share of the house given as security under the consent decree. The plaintiff filed E. A. No. 510 of 1942, raising the same objections as he did before the Master. The learned Subordinate Judge overruled the objection of the plaintiff to the execution of the decree and observed at the same time that the remedy of the plaintiff was by way of a suit for a declaration that the consent decree passed by this Court did not affect his interest in the property given as security by Vairavan Chettiar. Vide Ex. P-1 dated 26th March, 1943. The plaintiff preferred C.M.A. No. 404 of 1943 to this Court against the order of the Subordinate Judge but withdrew it and allowed it to be dismissed-see Ex. P-1 (b) dated 12th January, 1944.
6. On 14th March, 1944, the present suit was filed for setting aside the order of the Subordinate Judge of Devakottai in E. A. No. 510 of 1942 dated 26th March, 1943, Ex. P-1 and for declaring that the plaintiff's quarter share in the house given as security by Vairavan Chettiar under the decree in C S. No. 381 of 1929 was not liable to be sold in execution thereof. The basis of the plaintiff's claim as set out in paragraphs 6 and 10 of the plaint is that he and Vairavan Chettiar became divided in status as early as 13th August, 1926, and that he was in separate possession and enjoyment of a portion of the suit house which had been allotted as and for his one-fourth share. The consent decree against Vairavan Chettiar in G. S. No. 381 of 1929, in so far as it purported to charge the plaintiff's share of the house at the instance of Vairavan Chettiar, could not legally affect his interest, he being a divided nephew of Vairavan Chettiar at the time. The plaintiffs case further is that the decree in question was passed against Vairavan Chettiar personally in respect of his own individual liability and therefore the plaintiff's share could not be sold in execution of the decree against Vairavan Chettiar even on the -assumption that there had been no division between Vairavan Chettiar and himself. In this Court, the learned Counsel for the plaintiff raised a further contention that: there was no necessity for Vairavan Chettiar to give any security for the debt due/ to the defendant in as much as the debt could have been easily discharged fromu the funds of the money-lending business and therefore the plaintiff's share of the property was not affected by the charge created by Vairavan Chettiar.
7. It will be apparent from the preceding narration of facts that the plaintiff belongs to a Nattukottai Chettiar family which had been carrying on money-lending business for a long time, certainly.from the days of his, grandfather, Ramanathan Chettiar with the vilasam of RM. M. ST. The initial deposit of the money now claimed by the defendant was made with this Ramanathan Chettiar in 1900. After' the death of Ramanathan Chettiar, his two sons, Chidambaram Chettiar and Vairavan Chettiar carried on money-lending business of RM. M. ST. till 1907, when Chidambaram Chettier died. Thereafter, Vairavan Chettiar, the natural father of the plaintiff and his uncle by adoption, carried on the family money-lending. business till his death in 1937.
8. In 1925 Vairavan Chettiar paid off a portion of the debt due to the defendant by disposing of the immoveable properties under Ex. D-l, for Rs. 32,500. It was the balance of the deposit that was claimed by the defendant in C. S.. No. 381 of 1929 against Vairavan Chettiar and it was in respect of this balance that a consent decree for Rs. 40,000 was passed. If the plaintiff and Vairavan Chettiar were undivided and the decree in C. S. No. 381 of 1929 was passed in respect of a debt binding on the family, it is clear that the plaintiff's share of the family properties would be liable for the debt even though the decree was one against Vairavaii Chettiar. The debt in question would be an ancestral debt, contracted in 1900. by the grandfather of the plaintiff, though renewed subsequently in 1928 by Vairavan Chettiar. If the family remained undivided, the plaintiff would be under a pious, obligation to discharge the debt from the ancestral family properties, inclusive of his share therein. Even assuming, as argued by Mr. Gopalaswami Iyengar for the appellant, that the defendant's money must be deemed to have been deposited afresh with the Madras branch of RM. M. ST. in 1928, when Vairavan Chettiar was in management of the business, the plaintiff's share of the joint family property would still be liable for the debt and could be proceeded against in execution of the decree against Vairavan Chettiar. The banking business being an ancestral business carried on by the managers of the joint family for the time being, Ramanathan Chettiar, Chidambaram Ghettiar and Vairavan Chettiar in succession, the plaintiff as an undivided junior member of the family, would be liable for debts incurred by the manager in the course of the business. In the case of a family carrying on an ancestral banking business, receiving deposits of money from customers -and borrowing money on negotiable instruments, are incidental to the business and would constitute necessities of the family, though they would not be such in the case of a non-trading family. Credit is the essence of a banking business and the necessity for receiving deposits and borrowing monies arises from the very nature and extent of such business. The business is presumably conducted on the credit of the whole of the family property and the manager of the family business has power to pledge- the credit of the family for the ordinary purposes of the business which, in the case of a banking business, would include the receiving of deposits from customers and borrowing of monies. In the case of Nattukottai Chettiars, it has been held by this Court that no distinction can be made between their family property and their trading assets in the absence of a specific contract to that effect between the members of the family, Chidambaram Chetty v. Ramaswami Cheliiar : AIR1915Mad506(2) . Arunachalam Chetty v. Velliappa Chetty : AIR1915Mad748(1) . Bank of Bengal v. Ramanathan Chetti (1915) M.W.N. 180. Even though the plaintiff was a minor in 1928, when Vairavan Chettiar renewed the deposit of the defendant, the plaintiff's share of the entire family property would be liable for the debt due to the defendant from the RM. M. ST. banking business, raanaged by Vairavan Chettiar the business being an ancestral ones presumed to be carried on on the credit 01the entire family property. As observed in Muthayya Pillai v. Tinnevelly South Indian Bank (1916) 5 L.W. 341. 568 (F.B.).
The family property is swelled by the profits earned in the business and it would be not only unjust to confine liability to the extent of the appellant's share in the assets of the business, but it would be impossible in a case of this nature to say what is the extent of the property embarked on the business^' See also Meyyappa Chetliar v. Palaniappa Cheltiar : (1947)2MLJ589 .
9. Another contention of the learned advocate for the appellant is that the claim in G. S. No. 381 of 1929 was against Vairavan Chettiar personally under the summary procedure and therefore he could not validly charge the minor's share of the property under the consent decree, even though they were members of an undivided family. Reliance is placed for this contention on the decision in Maruthamuthu Maicker v. Kadir Baksha Rowther : AIR1938Mad377 . The short answer to this argument is that the suit, C.S. No. 381 of 1929, was one for the recovery of a debt and not a suit on a promissory note. If the debt was one binding on the joint family, Vairavan Chettiar was justified in giving the share of the plaintiff in the suit house as security. Yet another contention of the appellant is that Vairavan Chettiar might have paid off the-debt from the cash assets of the family and need not have encumbered the family estate by giving it as a security for the debt. This plea was not put forward in the plaint and was not even attempted to be substantiated by anything appearing in the evidence. The RM. M. ST. accounts, which would disclose the available fluid assets of the family in 1932 have hot been filed. This is a mere speculative argument devoid of any basis. It will be shown later in the course of this judgment that even in 1926, the creditors of the family began to press for payment and Vairavan Chettiar found it impossible to pay all of them in cash. He had to satisfy some of his creditors by conveying considerable portions of the family properties in their favour. Suits were also filed against Vairavan Chettiar by a number of creditors during the years 1932 to 1935 for large sums of money, the. largest decree-holder being the Imperial Bank of India, whose decree amounting to Rs. 3 lakhs, was. satisfied by a conveyance of family lands in favour of the bank under Ex. P-5 dated 30th December, 1931. The suggestion that in 1932, Vairavan Chettiar could have discharged the debt due to the defendant from the cash assets of the family is therefore futile. By furnishing the security of the house, Vairavan Chettiar got a substantial: reduction of the debt due from him to the defendant and also obtained a year's time for payment without liability for interest. If, therefore, the plaintiff and Vairavan Chettiar were undivided, the plaintiff cannot escape liability on the grounds stated above.
10. The plaintiff therefore naturally concentrated his attention on issues Nos. 1 and 2 which raised the question of a division between him and Vairavan Chettiar in 1926. Before we consider this issue, it is desirable to deal shortly with the arguments of Mr. T.L. Venkatarama Aiyar, the learned Counsel for the respondent, to the effect that even if the division in status, set up by the plaintiff were true, he would still be bound by the security given by Vairavan Chettiar and his share of the house could be validly sold in execution of the consent decree in asmuchas the debt is one binding on the family. In Venkatanarayana v. Somaraju : (1937)2MLJ251 two of the learned Judges (Venkatasubba Rao and Venkataramana Rao, JJ.) were of the opinion that if, pending a suit in respect of a money claim against a person who happened to be the manager of a joint Hindu family, a partition is effected among the members-of the family, the money decree passed in the suit against the quandom manager could be executed against the shares of the family property allotted by the partition to the junior members, provided the debt was one binding on the family. The weight of authority, both before and after the decision above referred to in which this opinion was given, is against this view. After a partition the power of the father or the manager to represent the other members of the family is at an end and it is difficult to see how the decree passed against the manager after partition can be executed against the divided members of the family who are neither actual parties, nor on any theory of representation could be deemed to have been parties to the suit or decree. The disposing power of the father or manager over the shares of the other members for satisfying debts binding on the family having come to an end by the division (see Satnarayan v. Sri Kishandas (1936) 71 M.L.J. 812 : L.R. 63 I.A. 384 : 1004. I.L.R. 17 Lah. 644 (P.C.), it is difficult to see how a Court executing the decree passed, against the quandome manager of the family can sell the shares of the junior members which the judgment-debtor himself could not have sold. Reliance cannot now be placed on the opinion of the two learned Judges in Venkatanarayana v. Somaraju : (1937)2MLJ251 , in view of the observations of the later Full Bench reported in Magi Reddi v. Somappa : AIR1943Mad1 .' We therefore hold that if the division in status alleged by the plaintiff to have taken place were true, it is not open to the defendant to sell the plaintiff's share of the family house in execution of the decree in G.S. No. 381 of 1929 which was passed only against Vairavan Chettiar. See also Kuppan Chettiar v. Masa Goundan : AIR1937Mad424 , Official Receiver, Guntur v. Seshayya : AIR1941Mad262 , Rangaswami Goundan v. Kandaswami Goundan : AIR1942Mad335 . The fact that Vairavan Chettiar consented to a charge being created on the plaintiff's share of the house as part of the decree in C.S. No. 381 of 1929 would not make any difference.
11. Mr. T.L. Venkatarama Aiyar, however, argued that even though' there was a division in status in 1926, it was within the authority of Vairavan Chettiar to conduct the banking business of RM. M. ST. on behalf of the family, to collect and conserve its assets to discharge its liabilities and in the course of such management to alienate or give a mortgage over the family property, including the share of the plaintiff in order to secure a debt incurred in the course of the business. He relied on the analogy furnished by Sections 45 and 47 of the Indian Partnership Act which substantially reproduced the corresponding provisions of the English Act and on the decision in In re Clough : Bradford Commercial Banking Co. v. Cure (1885) 31 Ch. D. 324 and In re Bourne : Bourne v. Bourne (1906) 2 Ch. 427. The decision of North, J., in the first of the two cases above referred to went on this line of reasoning, namely, that the surviving partner could have paid off out of the assets of the firm any existing debt and therefore he could equally well satisfy any creditor by giving a security upon a part of the assets in the course and for the purpose of winding up the firm. In the second of the two cases cited above, Romer, L.J., observed as follows:
The power of the surviving partner of course extends to a sale; and it also extends to giving a mortgage on any particular part of the property belonging to the partnership to secure in good faith one of the partnership debts.
This statement of the law considered in tlie context in which it occurs, means that the transaction is incidental to and for the purpose of winding up of the partnership. It is not permissible to give it any wider meaning or a general application to analogous cases. In the case of a dissolved partnership, it is settled law that the partners are entitled to an account of the assets of the partnership property free from debts secured or unsecured incurred by the managing partner except in so far as those were incurred for the purpose of winding up or so far as the 'creditors bonafide and reasonably believed that they were so incurred. See Govindoss v. Official Assignee of Madras (1934) 67 M.L.J. 167 : L.R. 61 I.A. 257 : (1934) 67 M.L.J. 167 : L.R. 61 I.A. 257. We need hardly point out that the Partnership Act as such has no application to a joint Hindu family business and a trade or business is like any other asset of the joint family subject to the rules of Hindu law and the limitations on the powers of a manager which arise as a consequence of a partition in the family. As we have already pointed out, partition puts an end to the power of the manager of the family to alienate the interests of the junior members in the family properties even to the extent of discharging pre-partition debts of the family. If we accept Mr. Venkatarama Aiyar's arguments in toto, it would result in the recognition of a power in A to sell B's property for a debf for which both A and B might be liable without reference to B or even against his wishes. Such a power can be exercised only if sanctioned by some statutory provision or well-recognised rule of Hindu law and not on grounds of mere convenience or expediency. Mr. Venkatarama (Aiyar, however, states that the strict rule of Hindu law must be and has been considerably modified to suit fhe exigencies of modern business and to protect the interests of creditors bona fide dealing with the manager of as Hindu trading family. We find it difficult to grasp with precision what, according to him, are the metes and bounds of the field within which an ex-manager of a family business can act so as to bind the interests of the other members.
12. Reliance has been placed on two recent decisions of this Court reported in Ramaswami Chettiar v. Srinivasa Iyer (1935) 70 M.L.J. 214 and Ramachandrappa v. Narayanappa : AIR1940Mad339 . Both these decisions recognise that it is not possible to apply the principles of the law of partnership to a joint family business and that, apart from any question of estoppel by holding out, a junior member of the family after partition is not in the same position as a partner of a dissolved firm. Dealing with the position of the manager of a joint family business vis-a-vis the junior members after partition, Venkatasubba Rao, O.C.J., in the first of the two cases referred to above, observed:
His (manager's) powers are not those of a manager of a joint family but of a co-owner or a tenant-in-common in management. In other words, on division, the right he possesses, is merely to preserve the trade so that it may not, as an item of the family property, be destroyed. If, for the purpose of preserving it, it becomes necessary to enter into fresh engagements, he may do so, but the object must be the preservation of the trade and not the continuing of it.
In the second of the two cases above quoted, Varadachariar, J., states the position thus:
As long as the family remains joint, the managing member enjoyed under the law,' and not by any contract or arrangement, certain powers in respect of the carrying on of the family business; but on the disruption of joint status, these powers so far as they rested only on his status as managing member must be held to come to an end. It is true that it may be some time before the properties are actually divided between the members but in the meanwhile, it is the duty of the person in possession .or management merely to preserve the estate and not to enter into new transactions unless he is prepared to do so on his own responsibility or the new transactions are necessary merely to fulfil obligations already contracted or to prevent loss to the estate.
It is only to a limited extent therefore that the authority of the manager of a joint family business after partition, to enter into transactions binding his erstwhile coparceners, has been recognised by these two decisions. It may well be that in this corner of the law, it is not possible to lay down with precision an exact and exhaustive rule applicable to every case that may arise. The learned Judges who decided the two cases did not refer to any statutory provision in support of the limited authority they conceded to the manager of a joint family business after a division in status and pending the final partition of the family assets and liabilities. In the interests of the members of the family and for the preservation of the business- as an asset of the family pending a final partition, a limited power to incur liabilities so as to bind the other members, has, no- doubt, been conceded to an ertswhile manager of the family, either as a rule of Hindu law or as a rule of justice, equity and good conscience. If the manager has himself incurred a liability or expended his own monies for the preservation of the business as an asset of the family, pending a final partition, he can claim reimbursement from the other members of the family under Section 70 of the Contract Act or claim credit for such expenditure at the time of taking accounts with a view to effect a final partition. It is one thing for a tenant-in-common to incur debts or pecuniary obligations for and on behalf of his co-tenants so as to entitle him to claim reimbursement but a quite different thing for him to alienate the property of his co-tenants. We are not prepared to extend the rule recognised by the two decisions above cited and to uphold an alienation by way of mortgage of immoveable properties belonging to the family by a manager after partition, so as to bind the interests of the junior members of the family even though the debt to secure which the alienation was made, might have been realisable from the entire joins family property at the instance of the creditor in a suit to which the junior members-are made parties.
13. In this case, there is nothing to show that the security given by Vairavan Chettiar in 1932 was for the preservation of the family business as an asset of the family. As early as 1926, the business had become unprofitable and later on suits were filed at the instance of several creditors for large sums of money. There was therefore no possibility in 1932 of preserving the business'as a valuable asset of the family and the charge created by Vairavan Chettiar under the decree in C.S. No. 381 of 1929 could not be justified on this principle.
14. One further legal contention of Mr. Venkatarama Aiyar remains now to be noticed. The plaintiff relies on a cadjan muri, Ex. P-2, dated 13th August, 1926, to prove his case of a division in status. The muri purports to allot different portions of the house which forms the subject of this litigation to the plaintiff and. Vairavan Chettiarrespectively. The genuineness of this muri is seriously disputed and will be considered later in the course of this judgment. Mr. Venkatarama. Aiyar states that even assuming the muri, Ex. P-2 to be genuine, it cannot be received in evidence for the purpose of proving a partition of the house, the document being unregistered and the property sought to be divided thereunder being worth some lakhs of rupees. Though Ex. P-2 recites the prior drawing of lots, it embodies the terms of the partition arrangement, including the allotment of different portions of the house to the two shares and the covenants entered into between.! them regarding the upkeep of the house and the sharing of the common expenditure. In our view, Ex. P-2 cannot be construed as containing merely recitals of an anterior and completed partition. Ex facie, it purports to embody a division by metes and bounds and being unregistered, is inadmissible to prove a division, vide Ramayya v. Achamma (1944) 2 M.L.J. 164 : I.L.R. 1945 Mad. 160 (F.B.). Mr. Gopalaswami Aiyangar for the appellant did not controvert this position. It has throughout been the case for the plaintiff that there was a division in status, total and complete, with reference to the entire estate and not merely with reference to the house now in question. In the course of his reply, however, Mr. Qopalaswami Aiyangar sought to develop an argument that Ex. P-2 would be available to prove a division in status between the plaintiff and Vairavan Chettiar quoad the house dealt with by the document, though not a division by metes and bounds. This argument was based on the decision in Subba Rao v. Mahalakshmamma : AIR1930Mad883 . The view of Sadasiva Aiyar, J., in Pothi Maickenv. Naganna Maicken (1915) 30 M.L.J. 62, on which reliance was placed by Mr. Venkatarama Aiyar, for the position that an unregistered partition deed is inoperative to effect a severance in status even, though there was an express declaration to that effect in the deed, must be considered to have been overruled by the subsequent decisions of this Court as observed in Svbba Rao v. Mahalakshmamma : AIR1930Mad883 . Mr. Venkatarama Aiyar contended as a matter of law that a member of a joint family cannot be divided in status with reference to a portion of the joint family property and remain undivided as regards the rest. He referred to a division in status brought about by a unilateral declaration of intention to become divided and a preliminary decree for partition, which operate and can only operate with reference to the entire family estate. A man cannot be divided in status as to a part of the family property and undivided as to the rest. So ran the argument. It was said that while there could be a partition by metes and bounds of a portion of the joint family property by mutual agreement, leaving the remaining property to retain its. character of joint family property, the same principle should not be applied to a division in status which is a matter of status affecting the relationship of a member of the family to the entire family estate. No authority was cited in support of this proposition. Such authority, however, as we have been able to find is against this contention. To start with, there is the oft-quoted passage in Appovier v. Ramasubba Aryan (1866) 11 M.I.A. 75.,
But if the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership in certain defined shares, then the character of an undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided.
In Ramalinga Annavi v. Narqyana Annavi (1922) 43 M.L.J. 428 : L.R. 49 I.A. 168 : I.L.R. 45 Mad. 489 (P.C.), in a passage omitted from the report of the case in the Indian Appeals and the Indian Law Reports, the Judicial Committee observed,
It is open to the members of a joint family to make a division and .a severance of interest in respect of a part of the joint estate whilst retaining their status as a joint family and holding the rest as the properties of a joint undivided family.
In a later case, the Judicial Committee observed that it was open to the members of a joint family to enter into a partnership in respect of a portion of the joint family property--a sugar factory in that case--after dividing that item into specific shares. There was no division by metes and bounds of the factory in that case. Sundar Singh Majithia v. Commissioner of Income-tax, United and Central Provinces (1942) 2 M.L.J. 761 : L.R. 69 : I.A. 119 : I.L.R. 1943 All. 69 (P.C.). If there can be a partial partition by metes and bounds in respect of a portion of the joint family property by mutual agreement, leaving the rest of the family property joint and undivided, there is no reason why by mutual agreement, the members of the family could not become divided in status with reference to that portion; in other words, there is no reason why they could not agree to hold that portion in defined shares either because a division by metes and bounds is not feasible or profitable or for other reasons. But the mere fact that the members of a joint Hindu family divide among themselves a portion of the family assets, does not by itself create or imply a division in status among them. Such intention to become divided in status must appear from the terms of the document relied upon as effecting the division-vide Appavu v. Manikkam : AIR1946Mad118 .
15. In the present case, Ex. P-2 does not disclose any intention on the part of the parties thereto to become divided in status. The usual clause as to the cesser of proprietary interest and the continuance of blood-relationship alone, found in vernacular documents of partition, is absent in Ex. P-2 which merely purports to allot different portions of the house to the plaintiff and Vairavan Chettiar and does -not refer to the status of the members of the family. There was no apparent reason why the plaintiff, an infant of 4 years of age and the only son of Vairavan Chettiar, should have thought of a division in status in 1926. The learned Subordinate Judge observed that the mere fact of the plaintiff living with his adoptive mother Valliammai in one portion of the house, his natural father, Vairavan Chettiar, occupying another portion, does not imply or involve a division in status, having regard to the habits of Nattukottai Chettiar families.
[Then their lordships deal with the question whether there was a division in status in 1926 between the plaintiff and Vairavan Chettiar and conclude :]
16. For the reasons above narrated, we agree with the lower Court in its finding on issues Nos. 1 and 2. We hold that it is unsafe to act upon Ex. P-2 as an authentic record of a partition between the plaintiff and Vairavan Chettiar. We find that there was no division in status between the plaintiff and Vairavan Chettiar. In this view, the defendant has secured a valid title to the half share in the house purchased by him in execution of the decree in C.S. No. 381 of 1929 and the plaintiff is bound by the Court sale. This conclusion renders it unnecessary to consider at length the arguments of Mr. Venkatarama Aiyar as regards the effect of the order of Mr. Justice Lakshmana Rao, in E.P. No. 253 of 1938 and of the Court of the Subordinate Judge, Devakottai, in E.A. No. 510 of 1942. We might observe that there was no decision on the points now debated either in the order of Mr. Justice Lakshmana Rao or of the Subordinate Judge of Devakottaii and it is difficult to hold that the present suit is barred by res jiidicata.
17. In the result, we direct that the appeal be dismissed with costs.