Alfred Henry Lionel Leach, C.J.
1. This appeal arises out of a suit for partition instituted in the Court of the Subordinate Judge of South Malabar. It has been filed by the first and the second defendants. The point raised by them is a very simple one. The plaintiff has filed a memorandum of cross-objections which challenges the correctness of the interpretation of an agreement entered into between the members of the joint family on the 30th September, 1925. The question here is not quite so simple.
2. The joint family was composed of three brothers, Kasturi Pillai, Sevanthan Pillai and Appavu Pillai. Kasturi died on the 6th October, 1925, and Sevanthan on the 19th May, 1930. The plaintiff is the son of Kasturi. There were five defendants : Appavu, his three sons and the widow of Sevanthan. The plaintiff averred that he was entitled to a half share of the family estate as the family had throughout remained joint and there were only two surviving coparceners namely himself and his uncle Appavu. The defendants averred that the agreement of the 30th September, 1925, effected a division of status and a partition of the family estate. On this basis the plaintiff could only have a one-third interest in the estate. The first defendant alleged that Sevanthan had made an oral will by which he left his entire share to him. The learned Subordinate Judge held that Sevanthan had made no will, but he accepted the defendant's contention that the agreement of the 30th September, 1925, had in fact effected a division of status. The first defendant does not challenge the finding of the Subordinate Judge that Sevanthan died intestate. He merely complains that the Subordinate Judge erred in holding him liable for a sum of Rs. 2,039-12-4. The plaintiff makes no complaint of the Subordinate Judge's judgment, except in so far as it decided that the agreement of the 30th September, 1925, resulted in a division of status and a partition of the property.
3. The question with regard to the Rs. 2,039-12-4 arises in these circumstances. Kasturi was a subscriber to a Kuri, or chit fund, and as a subscriber he became entitled to receive from the stakeholder Rs. 6,639-12-4. He was very ill at the time and not. in a position to look after his affairs. Admittedly the stakeholder paid out the full sum of Rs. 6,639-12-4 and the plaintiff says that all the money was received by the first defendant, who is consequently liable to account to him for it. The first defendant admits that he received Rs. 4,600 of the Rs. 6,639-12-4, but he denies that: he ever received the balance of Rs. 2,039-12-4.
4. The Subordinate Judge has dealt with this question in paragraphs 27 and 28 of his judgment and we agree with him that the first defendant must be held liable to account for the Rs. 2,039-12-4. Kasturi was very ill when the stakeholder paid out the money. In fact, he died 6 days later. The first defendant was in charge of the affairs of the family and it is not suggested that the stakeholder paid any of the money to Sevanthan. As Kasturi was dying it is most unlikely that any of the money would be paid out to him. The only person to whom the money could have been paid was the first defendant. It may be mentioned that the three brothers executed a mortgage in favour of the stakeholder to secure Kasturi's liability to the chit fund; and there can be no doubt that the execution of this mortgage was arranged by the first defendant. All the indications are in favour of the plaintiff's case thai the first defendant received the whole of the money. Therefore the appeal must be dismissed with costs in favour of the plaintiff.
5. We now turn to the plaintiff's memorandum of cross-objections. It is common ground that in 1925, the three brothers were living in separate houses. Kasturi and his family lived at Erode. Sevanthan and the first defendant lived at Kollan-gode which is near Palghat. Kasturi had lived at Erode for many years. It is also common ground that, notwithstanding that the brothers had lived and messed separately, the family was joint both in status and property, up to the 30th September, 1925. On the 23rd March, 1910, the brothers entered into an agreement for the management of the estate. This agreement was exhibited in the trial
6. Court, but does not form part of the record in this Court. It is, however, accepted by all parties that it merely arranged for the management of the estate and did not affect the joint status. The agreement entered into on the 30th September, 1925, was necessitated by the fact that Kasturi was very ill and provision had to be made for his maintenance and that of his family. The deed indicates that the brothers had previously divided between themselves the moveable properties of the family apart from the debts due to the estate. It provides that each brother-was to have a third of the income from the agricultural lands belonging to the family and pay a third of the revenue due to Government in respect of these lands. Each brother was to have a third of the interest earned on money lent out by the family and a third share in the principal amounts. The deed contains no provision for the division of the immoveable property. As Kasturi was so ill it provided that the management of the family affairs should vest in Sevanthan and the first defendant. Sevanthan does not appear to have taken any part in the management which at all material times was in the hands of the first defendant alone. The Subordinate Judge held that this document amounted to an agreement for partition because of the splitting up of the income into three shares, the division of tnoveable properties between the brothers and the provisions with regard to loans granted by the family and interest thereon. If the Court had not got to look beyond these matters, there would be much to say for the Subordinate Judge's decision; but there are other provisions in the deed and when the document is read as a whole in the light of the authorities we consider that the Subordinate Judge erred in holding that it amounted to a deed of partition.
7. The document opens with this recital:
Although we formerly executed a karar (agreement) and registered it as document No. 427 of 1910 in the office of the Sub-Registrar of Kollangode, and have been conducting ourselves in accordance with the terms of the said karar up till now, yet, since the trend of the times and the status of the family have undergone a change of aspect, and it has become mutually inconvenient under existing conditions to act in accordance with the terms of the previous karar we have settled, notwithstanding the provisions contained in the prior karar and in conformity to circumstances now prevailing to conduct ourselves in future in the manner stated herein below, and it has therefore become necessary to indite this karar in accordance with that settlement. If we act in accordance with the provisions of this karar it will bring us welfare and be the foundation of our future prosperity.
8. Clause (4) of the agreement provides that Sevanthan and the first defendant should 'in future manage the affairs of the family and cause them to be managed.' The agreement is described at the beginning of the document as ' Kutumba uatavati Karar', which means an agreement for the management of the family affairs. The total yield of the family property was 1,500 paras of paddy. Clause 5 of the agreement gives clear indication that each brother was to have '500 paras of paddy towards the food and other expenses of the members of his household. Clause 11 is also of importance. It contains this statement:
It is also settled that, if in future, it becomes necessary to borrow any sums for our family necessity, the said sums shall only be borrowed by all three of us jointly and shall not be borrowed by any one of us individually; that, however, if any one of us does borrow any amounts, the remaining members and the properties belonging to the family shall not be liable for the said debts, and that only the borrower and his share of the properties shall be answerable for the same.
9. The fact that the members of a joint family divide among themselves some of the family assets does not in itself mean a division in status. The learned advocate for the fifth defendant boldly asserted that this would be the effect; but when the authorities are read this assertion is clearly fallacious. The law is summarised in the following passages in Mayne (10th edition):
Partition is a new status, and when it is brought about by consensus of the members of a coparcenary they must intend that their condition as coparceners shall cease. It is not sufficient that they should alter the mode of holding their property. They must alter, and intend to alter, their title to it. They must cease to be joint owners, and become separate owners. On the one hand, the mere cesser of commensality and joint ownership, the existence of separate transactions, the division of income, or the holding of land in separate portions, or a mere definition of shares in revenue and village papers, do not establish partition, unless such steps were taken with a view to carry out a partition. The question however is one of fact to be decided in the light of legal principles, as to the cumulative effect of all the circumstances' (page 556),
Partition may be either total or partial. A partition may be partial either as regards the persons making it or the property divided.
10. It is open to the members of a joint family to sever in interest in respect of a part of the joint estate while retaining their status of a joint family and holding the rest as the properties of an undivided family' (page 567).
11. In his judgment in Sudarsanam Maistri v. Narasimhalu Maistri : (1901)11MLJ353 Bhashyam Ayyangar, J., said:
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.
12. In delivering the judgment of the Privy Council in Ramalinga Annavi v. Narayana Annavi (1942) 43 M.L.J. 428 : L.R. 49 I.A. 168 Mr. Ameer Ali said:
It will thus be seen that, under the Hindu Law, 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.
13. Turner, L.J., delivered the judgment of the Board in Sonalun Bysack v. Sreemutty Juggutsoondaree Dossee (1859) 8 M.I.A. 66 and in doing so said:
There has been no division at all of this family, unless the division of the income during the few years which followed upon the death of the testator up to a short period after the death of Hurry-mohan Bysack constituted division of the family, and their Lordships are very clearly of opinion, that the mere division of income, for the convenience probably of the different members of the family, did not amount to the division of the family.
14. There is here ample authority for the statement that the partition of some of the joint assets does not of itself imply a division in status. In deciding whether a joint family has become divided the Court must naturally have regard to the terms of any instrument bearing on the question and if the wording is ambiguous to the subsequent conduct of the parties. The observations of their Lordships in Maharaja Ram Kissen Singh v. Rajah Sheonundun Singh (1875) 23 W.R. 412 lend full support for this statement.
15. The division of the income of the agricultural lands is not in itself sufficient basis for the defendants' contention that there is in the agreement of the 30th September, 1925, clear indication of a division in status. The decision of the Privy Council in Sonatun Bysack v. Sreemutty Juggutsoondaree Dossee (1859) 8 M.I.A. 66 at 86 in itself provides a complete answer to this argument.
16. Now, does the fact that the brothers divided the outstandings and other moveable property make any difference? We consider that it does not. The moveable property had merely been divided for convenience, as had the allocation of income. The fact that the family owned considerable amount of immoveable property and left that completely undivided in itself proves strong indication that the agreement of the 30th September, 1925, was not intended to effect a severance. But there are further and even stronger indications in this direction, namely, in the fact that two of the brothers were to have charge of the future management of the affairs of the family, and in that no brother could borrow money for a family necessity without the other two joining in.
17. What does the subsequent conduct indicate? As we have shown, Kasturi died 6 days after the execution of the agreement and Sevanthan did not take any part in the management of the family affairs. When Sevanthan died in 1930 the first defendant, who had throughout been managing remained in management, and he remained in management until the filing of the suit. On the 15th August, 1927, a petition was addressed to the Collector of Malabar by the mother of the plaintiff as his guardian by Sevanthan and by the first defendant.
18. Paragraph 4 of this petition reads as follows:
That the petitioners beg to state that in virtue of a family karar Appavu alias Lakshmana Kllai (the first defendant) is the present manager of the properties and they therefore request that any references or orders in connection with this petition may be sent to him.
19. Does this not mean, that the first defendant was the kartha of the joint family? The learned Counsel for the fifth defendant has stressed a statement made by the plaintiff's mother in another petition. Part of the family property had been acquired in land acquisition proceedings and in this connection money was lying in Court. The plaintiff's guardian applied that it be paid out to her on his behalf. She stated that the plaintiff's father Sevan than and the first defendant were living divided in status. In Venkatapathi Raju v. Venkatanarasimha Raju : (1901)11MLJ353 the Judicial Committee had to consider the effect of a statement made by two brothers. Their Lordships pointed out that it sometimes happened that persons made statements which served their purpose or proceeded upon ignorance of the true position; and it was not their statements, but their relations with the estate, which should be taken into consideration in determining the issue. We have no doubt that the plaintiff's mother made the statement relied upon by the fifth defendant as she considered that by doing so she could more easily secure payment out to her of the money. We cannot regard it as of any importance, especially as in the petition to the Collector which was of an earlier date she subscribed to the averment that the first defendant was the manager of the family property.
20. We hold that the agreement of the 30th September, 1925, did not effect a division in status. In our judgment the arrangement was made in order to meet the situation created by the three brothers living in different places and the illness of Kasturi. If there had been any intention that the document should be read as a deed of partition, they certainly would not have described it. as an agreement for the management of the family affairs, and nothing would have been easier for them to have worded it as a deed of partition. The wording is inconsistent with such a deed. For these reasons we allow the plaintiff's memorandum of cross-objections with costs against the appellants and defendants-respondents.
21. As the result of the allowing of the memorandum of cross-objections the fifth defendant has no interest in the estate beyond a right to be maintained out of it. The question of the amount has not been decided by the trial Court. The case will have to be remanded to the Subordinate Judge to hear and decide an issue with regard to the amount to be paid to the fifth defendant for her maintenance. The parties will be at liberty to adduce whatever further evidence they desire in this connection. The finding of the Subordinate Judge on this issue will be embodied in the final decree.