Satyanarayana Rao, J.
1. This is an appeal against the judgment and decree of the learned District Judge of Rajahmundry modifying the decree of the learned Subordinate Judge of Rajahmundry in O.S. No. 34 of 1938 on his file.
2. The plaintiff and the first defendant are the appellants. They are the sons of one Kurapati Venkataratnam by his second wife. Jaggarao, the father of; the fourth defendant, the second defendant and the third defendant are the sons of the said Venkataratnam by his first wife. Venkataratnam died in 1922. Thereafter Jaggarao and the second defendant managed the properties of the family and also continued the trade. During the course of their management the properties of the family were alienated to various defendants in the present suit. The immovable properties of the family are described in schedules A to F attached to the plaint in the present suit. The A schedule property was sold under Ex. III on the 27th May, 1930, to defendants 5 to 7. The B schedule property was sold on the 13th of August, 1930, under Ex. CC to the eighth defendant. The G schedule lands were sold under Ex. VIII dated the 18th of February, 1930, to the ninth defendant. Item 1 of D schedule was sold on the 23rd of March, 1933, to the tenth defendant under Ex. V. Item 2 of the said schedule was sold on the 30th of January, 1935, under Ex. O to the eleventh defendant. The E schedule property was sold to the 12th defendant on the 26th of February, 1935, under Ex. O-i and from the 12th defendant the 13th defendant purchased it, and he was in possession of the said property. In pursuance of the decree in O.S. No. 57 of 1935 on the file of the Court of the District Munsiff of Rajahmundry items 2 and 3 of the F schedule were sold in Court auction and were purchased in 1938 during the pendency of the present suit by the 14th defendant. G schedule comprises moveables alleged to belong to the family.
3. The plaintiff instituted the present suit on the 1st of April, 1936, for a declaration that the sales in respect of the properties described in schedules A to F attached to the plaint did not bind him and that the properties comprised in schedules A to G should be divided into five equal shares and possession delivered to him of one share. There are also other reliefs in the plaint which are not very material for the purpose of this appeal. The main contention of the plaintiff raised in the plaint was that the alienations in question were made by Jaggarao and the second defendant for discharge of their private debts and therefore were not binding on the family. He also contended that by reason of the proceedings in O.S. No. 63 of 1933, a suit filed by the second defendant as plaintiff in the Court of the District Munsiff of Rajahmundry for partition of the joint family property, there was a disruption of the joint status of the family and such of the alienations as were made after such division did not bind the plaintiff, in any event, as the brothers had no right or authority to alienate the properties purporting to do so as managers of the family. There is also a further allegation that as regards items 2 and 3 of F schedule the decree in O.S. No. 57 of 1935 in pursuance of which they were sold do not bind him or his interest in the said item, as the decree was obtained against defendants 2 and 3 in their individual capacity and was personal to them and that the sale was also affected by the doctrine of lis pendens.
4. The first defendant, the brother of the plaintiff, filed a written statement supporting the case of the plaintiff. The second defendant was at first ex parte, and though he appeared during the trial of the suit by pleader he did not file any written statement. Defendants 3, 4, 8 and 13 were ex parte. Defendants 5 to 7 who are in possession of the properties described in the plaint A schedule and whose purchase was before the institution of the suit, O.S. No. 63 of 1933, contended that the properties alienated to them were the self-acquired properties of Jaggarao and the second defendant and that in any event as the alienation was binding on the family as it was made for purposes binding on the family and that therefore the sale ought to be upheld. The ninth defendant who was interested in the C schedule properties raised similar contentions. The tenth defendant who purchased item 1 of D schedule under Ex. V contended that the suit O.S. No. 63 of 1933, which was ultimately withdrawn did not effect a severance in status, and that in any event as the agreement to sell in his favour was long before the filing of the suit his transaction was not affected by the division in status, if any. He also alleged that the sale was for purposes binding on the family and that therefore the sale in his favour should be upheld. The nth defendant who purchased item 2 of the D schedule under Ex. O, and the 12th defendant who purchased the E schedule property under Ex. O-1, also raised similar contentions. The 14th defendant who purchased items 2 and 3 of the F schedule raised a further contention that the sale in execution of the decree in O.S. No. 57 of 1935 was, binding on the shares of the plaintiff and the first defendant.
5. The learned Subordinate Judge held that Jaggarao and the second defendant continued the rice business which had been started by their father Venkataratnam and that it was an ancestral business of the family and not their separate business. Though in the sale deed in favour of defendants 5 to 7 the A schedule property was described as the self-acquired property of the second defendant and Jaggarao the learned Judge found that it was really joint family property as it was purchased under two documents, Exs. III-a and III-b on 3rd October, 1924, from one Venkatakrishnamaraju out of funds belonging to the family and in discharge of a prior mortgage debt of 1915 due to the family. He also found that the consideration for the sale under Ex. III in favour of defendants 5 to 7 was, in fact, credited in the trade accounts and was utilised for discharging binding debts of the family. He therefore came to the conclusion that the sale of the A schedule property was binding on the plaintiff.
6. As regards B schedule property purchased by the 8th defendant there was no contest by him; and there was no evidence let in to support the transaction. The learned Subordinate Judge therefore found that the sale of that property under Ex. CC did not bind the plaintiff. The sale of C schedule property was held to be valid and binding on the plaintiff. According to the learned Subordinate Judge, the proceedings in the suit O.S. No. 63 of 1933 did not bring about a disruption of the status of the family and therefore the sales effected, after the institution of that suit, by Jaggarao and the second defendant were not void on the ground that they had no power or authority to alienate the properties. He found that the consideration for the alienations of the two items comprised in schedule D went in discharge of debts binding on the family and therefore the alienations in question were valid. As regards F schedule property his conclusion was that the sale was binding only to the extent of a sum of Rs. 350-4-6 out of the total consideration of Rs. 600 and that the rest of the consideration was not proved to be binding on the family. 'In the result, so far as this item of property is concerned, he directed that the plaintiff and the first defendant should each be entitled to recover one-fifth share on condition of each of them paying to the 13th defendant Rs. 70-1-0.
7. A further contention raised in the suit by way of amendment to the plaint that there was a division of status even before 1922 during the lifetime of Venkataratnam was negatived by the learned Subordinate Judge, and that contention was not persisted either before the lower appellate Court or before us. If that case was established, no doubt the plaintiff would have been entitled to one-fourth share and not one-fifth.
8. As regards F schedule items 2 and 3, the learned trial Judge held that the sale did not bind the interests of the plaintiff and the first defendant, as after the institution of the present suit defendants 2 and 3 could not continue to represent in the execution proceedings, the plaintiff and the first defendant as there was a division in status. The claim as regards item 1 of F schedule and moveables in G schedule was rejected as the plaintiff failed to adduce any evidence in respect of those properties. The result was that a decree declaring that the plaintiff and the first defendant were each entitled to one-fifth share in the property in B schedule and in items 2 and 3 in F schedule and in E schedule subject to the payment of Rs. 70-1-0 to the 13th defendant and partition and separate possession of a one-fifth share in these items was granted to plaintiff. In other respects the suit was dismissed.
9. Against this judgment and decree there were appeals to the lower Appellate Court, A.S. No. 196 of 1941 by the plaintiff in respect of the claim disallowed by the trial Court, and A.S. No. 35 of 1941 by the 14th defendant claiming the entirety of items 2 and 3 of the F schedule. In both the appeals the first defendant filed cross-objections claiming the same relief as the plaintiff. The learned District Judge agreed with the first Court on all the points except with reference to items 2 and 3 of the F schedule. In coming to the conclusion regarding F schedule the learned District Judge relied upon the decision of the Full Bench in Venkatanarayana v. Somaraju (1937) 3 M.L.J. 351 : I.L.R. 1937 Mad. 880, which laid down that if a suit was filed against the manager of a family in a representative capacity, the mere fact that subsequent to the institution of the suit there was a division of the status of the family would not put an end to the representative capacity of the manager and that a decree obtained in such a suit would be binding on all the members notwithstanding that the status was divided during the pendency of the suit. In the result, the learned Judge allowed the appeal of the 14th defendant and dismissed the appeal of the plaintiff and the cross-objections of the first defendant.
10. Against this decision the present second appeal was filed by the plaintiff and the first defendant. The second appeal came on for hearing in the first instance before Chandrasekhara Aiyar, J., who referred the case to a Bench on the ground that the properties involved in second appeal were more than Rs. 10,000 in value and that it also raised the question of the correctness of the decision in Venkatanarayana v. Somaraju (1937) 3 M.L.J. 351 : I.L.R. 1937 Mad. 880, after the decision of the Full Bench of five Judges in Nagireddi v. Somappa (1942) 3 M.L.J. 691 : I.L.R. 1943 Mad. 348.
11. In this appeal we are only concerned with the alienations relating to schedules A, D and F and the court sale relating to items 2 and 3 of F schedule. If, as the appellants contend, there was a division in status of the family brought about by the proceedings in O.S. No. 63 of 1933, that would not affect the validity and binding nature of the sale under Ex. III of the A schedule property and of the sale of item 1 of D schedule under Ex. V. The sale of A schedule property was on 27th May 1930 long before the institution of the suit, O.S. No. 63 of 1933, which was on the 15th March 1933. The sale under Ex. V of item 1 of D schedule was no doubt on the 23rd March 1933 about 8 days after the institution of the suit, O.S. No. 63 of 1933, but the agreement to sell relating to that property was on 23rd December 1932 (Ex. II-c), and it was not seriously contended before us that there was a communication of an intention to separate by that date which resulted in a division of the status of the family. These two alienations therefore will be binding on the plaintiff if they were for necessity or for the benefit of the family. On this question the concurrent findings of the courts below were against the appellants and we find no reasons to differ from them.
12. It was further argued on behalf of the appellants that as under Ex. III the vendors Jaggarao and the second defendant claimed the property to be their self-acquisition it cannot be held that they acted in a representative capacity as managers of the family and that therefore the alienation was ineffective to convey the interests of the appellants in the A schedule property. It was also faintly argued on behalf of the appellants that the debts alleged to have been discharged from and out of the consideration did not bind the appellants as they were not family debts but the private debts of Jaggarao and the second defendant as the trade they carried on was their individual business and not ancestral trade, and that in any event the specific debts alleged to have been discharged have not been proved. The father, Venkataratnam, who according to the allegations in paragraph 4 of the plaint, carried on the business to supply rice and other articles under contracts to the Rajahmundry Central Jail and other jails, had a commission shop at Rajahmundry and also had a rice mill for converting paddy into rice. This allegation, it is contended, was not seriously denied in the written statements of the defendants. On the other hand, even according to the evidence of D.W. 1, the fifth defendant, one of the alienees, Jaggarao himself introduced a change in the business as instead of using the rice mill merely for husking paddy which was hired for the purpose he himself purchased paddy, got it converted into rice and sold it in his shop. This it is urged is a total change in the nature of the business which Venkataratnam started and carried on during his life-time and that therefore the business carried on by Jaggarao and the second defendant was not ancestral business. We are unable to agree with this contention. The change even if true was not a material change and the nature of the business was not radically altered. Even for contracts entered into by Venkataratnam for supply of rice to jails he had necessarily to buy rice and then supply it under the contracts. In our view, therefore, the business carried on by Jaggarao and the second defendant after the death of their father was really a continuation of the old business and was not a new business.
13. As regards the proof of the debts discharged out of the consideration, it is in evidence, that a sum of Rs. 2600 was credited in the accounts of the trade, i.e., not only the consideration of Rs. 2500 for the sale but a further sum of Rs. 100 was credited in the trade accounts. Out of this the accounts themselves show that a sum of Rs. 1900 was utilised for the discharge of the debts of the creditors. The details of these payments to the creditors are to be found in Ex. XV-b. When once the amount as found by the courts below was credited in the trade accounts and most of it was utilised for discharge of pre-existing debts, it is difficult to hold that the consideration was not utilised for purposes binding on the family. The balance over and above Rs. 1900 must have been utilised for the purpose of trade, and this is borne out by the accounts. The consideration therefore of this sale is proved to have been applied for the purposes binding on the family.
14. The only contention that requires serious consideration with reference to this transaction is the argument that Jaggarao and the second defendant did not act in the matter of this transaction in a representative capacity, as they described the property as their self-acquisition in the sale deed Ex. III, and that therefore the interest of the appellants in the A schedule property were not affected. In support of this contention several decisions were referred to by the learned advocate for the appellants. It has been found by the Courts below that the property was in fact joint family property on the date of sale. The document itself gives as the reason for the sale that the land was not useful and that the amount was required for carrying on the business of the family. There is nothing to indicate in the document that the vendors were setting up a title in themselves inconsistent with and hostile to the interests of the other members of the family. On the other hand, they purported to convey under the document not merely their interests in the property but an absolute right to the vendee. In these circumstances, it must be deemed, that they conveyed not only their interests but the interests of all the members of the family. The correct principle applicable to such cases has been stated by Venkatasubba Rao, J., in Sankaranarayana Pillai v. Rajamani (1923) 46 M.L.J. 314 : I.L.R. 47 Mad. 462, with which Phillips, J., concurred. The learned Judge observes,
The true principle deducible from these cases seems to be this. The first question that arises is, did the executant purport to pass the whole property? The next question is, was he in a position to validly convey it? If the two questions are answered in the affirmative, the third question arises, is there anything in the deed to repel the presumption that he intended to convey the title he possessed in every capacity?
15. Under Ex. III the vendors purport to convey the whole of the property and as managers of the family they possessed the authority to convey it for purposes binding on the family, and there is nothing in the deed to negative an intention to convey an absolute title. In the case Sankaranarayana Pillai v. Rajamani (1923) 46 M.L.J. 314 : I.L.R. 47 Mad. 462, the question was whether the Official Receiver who represented the estate of the father who was adjudicated an insolvent conveyed under a sale by him not only the estate of the insolvent but also the shares of the sons. The answer was that he did so convey as under the law as then understood, the father's power to alienate the sons' shares for the discharge of his antecedent debts also became vested in the Official Receiver on the adjudication of the father as an insolvent. Varadachariar and Mockett, JJ., had also to consider a similar question in Ramakrishna Mudaliar v. Manicka Mudaliar : AIR1937Mad375 the test applicable to such casses is stated thus:
The second head of argument advanced by the learned Counsel for the respondents on the strength of the decision in Balwant Singh v. R. Clancy , is answered by more than one decision of this court...to the effect that the mere fact that properties are described by a member of a family as properties acquired out of his earnings is not the assertion of such a hostile claim as against the interests of the family or an indication that it was his own personal transaction as to preclude the application of the principle that if the purpose was one binding on the family the transferor might still be regarded as having entered into the transaction in the capacity in which he could bind the family.
This view was followed by another Bench in Muthiah Chettiar v. Rayalu Iyer, Nagaswami Iyer and Co. : AIR1944Mad98 .
16. Of the decisions relied on by the learned advocate for the appellants Balwant Singh v. R. Clancy , is a case where one of the brothers assumed without authority the title of Raja and asserted that the family estate was impartible and that his younger brother was only entitled to maintenance. The properties in question were granted by Government after the Indian Mutiny to one Dilsukh Rai, and after his death they devolved on his son, one Shankar Singh. Sheoraj Singh and Maharaj Singh were the sons of Shankar Singh. Sheoraj Singh executed a mortgage in respect of the properties on the 28th October, 1892, for discharge of debts contracted by Shankar Singh, the father. According to the recitals contained in the mortgage deed, Maharaj Singh, the brother, was included in the deed to evidence his consent to the transaction. It was however found that Maharaj Singh was a minor on that date and was incapable of giving any consent. In a suit to enforce that mortgage by an assignee from the mortgagee the question was whether the mortgage was effective to convey the interest also of Maharaj Singh, it having been found that the estate was not impartible. As Maharaj Singh was a minor it was held that the mortgage was void and of no effect and did not in any way affect the interest of Maharaj Singh in the estate. As Sheoraj Singh, though a de jure manager of the family estate, assumed the position that he was the absolute owner of the estate which he claimed to be impartible, asserting a title hostile to Maharaj Singh, it was impossible to hold that Sheoraj Singh represented Maharaj Singh in executing the mortgage, though it was for discharge of binding debts. That decision therefore has no application to the facts of the present case.
17. The decisions in Nandan Prasad v. Abdul Aziz I.L.R. (1923) All. 497, and Ammani Ammal v. Ramaswami Jfaidu (1918) 37 M.L.J. 113, also did not help the appellants as in both the cases there was a hostile assertion of title in the documents themselves which negatived any presumption of the respective vendors acting in their representative capacity. For these reasons we have no doubt, that Ex. III was executed by Jaggarao and the second defendant as managers of the family, and as the consideration was applied for discharge of binding debts the transaction must be upheld.
18. The sale of item I of D schedule under Ex. V has also been found to be binding on the appellants by both the Courts. The consideration for the document was Rs. 2000, and at the time of the agreement to sell an advance of Rs. 400 was paid, and the balance of Rs. 1600 was paid to the mortgagee under Ex. II which it is not disputed was a binding debt. The payment was endorsed on the document, and the endorsement is marked as Ex. II-a. The sale under Ex. V therefore is binding on the appellants.
19. Before considering the binding nature of the alienations of item 2 of D schedule under Ex. O and of E schedule under Ex. O-1, and the Court sale relating to F schedule items 2 and 3, it is necessary to deal with the contention of the appellants that the proceedings in the suit, O.S. No. 63 of 1933, effected a severance in the status of the family as the decision on the question has a material bearing on the validity and binding nature of those transactions. Both the Courts have held on the authority of certain decisions which will be considered later that a unilateral declaration by one member of a joint family which is clear and unambiguous and has been communicated to the other members and brought about an immediate severance of status is revocable and that the joint status may be restored by such revocation. The question is whether this view is correct.
20. It has been pointed out very early in the well known decision in Appovier v. Ramasubba Aiyan (1866) 11 M.I.A. 75 1866 L.R. 40 IndAp 40, that the word ' division ' or ' vibhaga ' is used in a two-fold sense. It denotes both a division of title and also division of the subject to which the title relates. In other words there may be a division of right and there may be also a division of the property. The division of the right or title means that the joint title or joint tenancy is converted into a tenancy in common. After such conversion the shares of the cooparceners become defined and fixed. As a corollary, survivorship which is an incident of coparcenary is put and end to. In the division of the property to which the title or the right relates there is always a separation of the property by metes and bounds, in other words a physical division. Such a division puts an and to the tenancy in common and makes the property the separate property of the vendors. The division of the right or title may be effected either by an agreement between the members or by a unilateral declaration of the member who wishes to become separate, that is, a clear and unambiguous intention to become separate and hold the property in severalty which is communicated to the other members. It is an individual decision and exercise of his volition and is not dependent upon the consent or the concurrence of the other members. The result of such declaration is to divide the title and to bring about a division of status of the family so far as the declarant-member is concerned. Thereafter such member is entitled to alienate his own share which of course is not physically divided and if he dies thereafter the other members do not have any right of survivorship in respect of his share. He is at liberty to dispose of by will his undivided share which is held by him as a tenant in common. These are the results that flow from such division of the status. This method of division of the family was not countenanced by our Court till the decision of the Privy Council in Suraj Narain v. Iqbal Narain (1912) 24M.L.J. 345 I.L.R. 35 All. 80. The view that prevailed in Madras till then was that even for such a division there should be an agreement between the members or there should be a decree. A mere unilateral declaration had not that effect, and an individual member did not possess the liberty of getting himself separated in status by the exercise of his own volition. That it has such an effect has however now been firmly established as part of Mitakshara Hindu Law by the subsequent decisions of the Privy Council and also by the decisions of our and other High Courts. It is also equally well settled that when once there is a division whether of status or of property there is no means of avoiding that result except by a reunion for which an agreement, express or implied, is always required. From the necessity of an agreement it follows that if there are minors, such a reunion is not possible, as a minor can never give an effective consent in law. A coparcenary is a creature of law and cannot be brought into existence by agreement of parties. It therefore follows that except in cases where there is a subsequent reunion it is impossible to restore the joint status when once it has been put an end to. The question therefore that falls to be considered is whether when once a unilateral declaration in unambiguous terms is intimated to the other members, is it open to such a member to withdraw such intention? It is said that certain decisions of the Privy Council and of the Courts in India lend support to the contention that such an intention is revocable. It is necessary therefore to examine the decisions to see whether this argument is well-founded.
21. The decision of the Privy Council in Suraj Narain v. Iqbal Narain (1912) 24M.L.J. 345 : I.L.R. 35 All. 80, affords a convenient starting point for the discussion of the principle. In that case their Lordships of the Judicial Committee enunciated the doctrine in these terms at page 87:
The principle applicable to cases of separation from the joint undivided family has been clearly enuncitaed by this Board in Rewun Prasad v. Radha Beeby (1846) 4 M.I.A. 137, and the well known case of Appovier v. Ramasubba Aiyan 1866 L.R. 40 IndAp 40, What may amount to a separation or what conduct on the part of some of the members may lead to disruption of the joint undivided family and convert a joint tenancy into a tenancy in common must depend on the facts of each case. A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed.
After this pronouncement of Privy Council, a Full Bench of this Court considered the question in Soundararajan v. Arunachalam Chetti (1915) 29 M.L.J. 793 : I.L.R. 39 Mad. 159, where it was held that a member of a joint Hindu family became separated from the other members by the fact of suing them for partition. In the judgments of Sadasiva Aiyar and Seshagiri Aiyar, JJ., the law as understood in this presidency till the decision of the Judicial Committee referred to above was considered. Till the said decision of the Privy Council it was assumed in Madras both by the Bench and the Bar that no separation in status affecting the right of survivorship resulted by a mere institution of a suit for partition and that it was only the decree of the Court passed in such a suit that affected the status. In that decision Sadasiva Aiyar, J., found as a fact that the plaint in that case contained a definite and unambiguous expression by the plaintiff of an intention to separate and to enjoy his share in severalty which was also communicated to the other members by the service of suit summonses. With reference to the question as to when and to what extent the filing of a plaint may be considered to effect a severance in status the learned Judge's observations at page 173 are of considerable assistance. It is necessary to bear in mind those observations in order to understand some of the cases of this and other High Courts which hold that a plaint which was filed and was subsequently withdrawn did not bring about a disruption of the status of the family. The learned Judge says, at page 173,
It seems to me that if the plaint is filed, not merely for a declaration of the plaintiff's right as a coparcener in an undivided family (as in the old Calcutta case Debee Pershad v. Phool Koeree alias Cheena Koeree (1869) 12 W.R. 510), but is brought for a partition of the joint family property on the basis that the plaintiff wishes to be treated as a divided coparcener from the date of the plaint (if not from an earlier date) and if he seeks for mesne profits at least from the date of the plaint, if not from an earlier date, and asks for the division of the properties as they stood at the date of the plaint, if not at an earlier date, it seems to me difficult to conceive of a stronger, more unequivocal and more unambiguous declaration of an intention to separate himself and if that intention is communicated through the court by summonses issued to the defendants (the remaining coparceners) in that case, such clear expression of intention becomes fully effectual to create division in status. I take it that the phrase ' clearly expressed ' means ' clearly expressed to the definite knowledge of the other coparceners'.
From this it follows that it is not every plaint or every suit for partition that brings about a division in status from the moment the suit was instituted and the summonses in the suit were served on the other coparceners. It must contain a clear and unambiguous intention on the part of the coparcener suing that he wishes to treat himself as a divided coparcener from the moment the plaint was filed. This view of the learned Judge was accepted by Sir John Wallis, C.J. and Seshagiri Aiyar J.
22. The next decision of the Judicial Committee in which the question was considered more elaborately after an examination of the Hindu law texts bearing upon the point is the well-known decision of Girja Bai v. Sadashiv Dhundiraj (1916) 31 M.L.J. 455 : 1916 L.R. 43 IndAp 151 : I.L.R. 43 Cal. 1031. In that case, a coparcener issued a registered notice to the other coparcener whereby he communicated his desire to have a partition of the whole of the joint family properties and to hold his one-third share in severalty. As the demand was not complied with, he instituted a suit for partition immediately impleading the other coparceners as parties to it. During the pendency of the suit he died leaving his widow as his sole heiress. The widow thereafter applied for bringing herself on record as the legal representative of her deceased husband, and that application was opposed by the defendants on the ground that after the death of the husband the entire properties of the family passed to them by survivorship, and that therefore the widow had no right to come on record as the deceased plaintiff's legal representative. The question that had to be considered, therefore, was whether the earlier notice in the suit put an end to the joint status of the family or not. The view taken by the Judicial Commissioner against whose decision an appeal to the Judicial Committee was preferred was that a severance in status could not be brought about by a mere unilateral declaration and that it required the consent of the others or an effective decree of the Court to bring about that result. In dealing with this contention, their Lordships pointed out the two-fold meaning attached to the word ' partition ' or ' vibhaga ' under Hindu law as pointed out by their Lordships in the earlier case of Appovier v. Ramasubba Aiyan (1866) 11 M.I.A. 75, and reviewed the texts of Hindu Law and the conclusion was stated at page 1047. As that passage is the foundation for the discussion of the question in later cases, it is necessary to quote it in extenso,
Their Lordships do not think it necessary to examine further the law as laid down in the texts. They propose to refer shortly to the cases which establish clearly that separation from the joint family involving the severance of the joint status so far as the separating member is concerned, with all the legal consequences resulting therefrom, is quite distinct from the de facto division into specific shares of the property held until then jointly. One is a matter of individual decision, the desire on the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined or unspecified share separately from the others without being subject to the obligations which arise from the joint status; whilst the other is the natural resultant from his decision, the division and separation of his share which may be arrived at either by private agreement among the parties, or on failure of that by the intervention of the Court. Once the decision has been unequivocally expressed and clearly intimated to his co-sharers, his right to obtain and possess the share to which he admittedly has a title is unimpeachable (the italics are ours); neither the co-sharers can question it nor can the court examine his conscience to find out whether his reasons for separation were well-founded or sufficient; the Court has simply to give effect to his right to have his share allocated separately from the others.
At page 1050 it is again pointed out that,
The intention to separate may be evinced in different ways, either by explicit declaration or by conduct. If it is an inference derivable from conduct it will be for the court to determine whether it was unequivocal and explicit.
In the result their Lordships held that there was a severance in status in view of the notice and of the institution of the suit for partition and that the widow was entitled to succeed. Whether there was such an intention and whether it was communicated to all the members has to be decided from the facts of each case. If there was an explicit declaration which was communicated, the problem may be easily solved; but if there was none such, and the Court has to infer it from the conduct, the entire conduct, has of course, to be taken into consideraion in order to reach a conclusion one way or the other. In considering the later decisions it is necessary to bear this distinction' in mind and to see whether it is a case where, on the facts, there was an explicit declaration or whether it was merely a case of inferring an intention to separate from the course of conduct.
23. In Kawal Nain v. Budh Singh , a suit for partition instituted by one of the members was dismissed on the ground that the plaint did not disclose a cause of action. After the dismissal of the suit the plaintiff in the suit mortgaged his share of the property in favour of the predecessor-in-title of the appellants before the Privy Council. In a suit to enforce that mortgage to which the other members of the family were impleaded as parties they raised the objection that as the mortgagor was a member of joint Hindu family governed by the Mitakshara law at the time of the mortgage, the mortgage did not bind the family. According to the law obtaining in that province a coparcener had no right to alienate his undivided share of the properties. The mortgagee met the objection of the other coparceners by the plea that the earlier suit for partition which no doubt was dismissed brought about a division of the status of the family and that therefore the mortgage by a co-sharer thereafter was valid. Their Lordships had therefore to consider the effect of the prior suit on the status of the family. There was a definite finding of their Lordships that the plaint in the prior suit amounted to an intimation to the defendants (coparceners) of an unequivocal desire of the mortgagor to separate from the joint family and that therefore on the principle of the decision in Girija Bai v. Sadashiv Dhundiraj (1916) 31 M.L.J. 455 : 1916 L.R. 43 IndAp 151 : I.L.R. 43 Cal. 1031 (P.C.), the commencement of the suit for partition effectively separated the mortgagor from the joint family even prior to the date of the mortgage. It is again pointed out in that case that for a division in status brought about by such unilateral declaration the consent of the other co-sharers was unnecessary and that a decree may be necessary for working out the result of the severance and for allotting definite shares; but the status of the mortgagor as separate in estate was brought about by the assertion of such right irrespective of the result of the suit.
24. In Ramalinga Annavi v. Narayana Annavi (1922) 43 M.L.J. 428 : 1922 L.R. 49 IndAp 300 . : I.L.R. 45 Mad. 489 (P.C.), a coparcener issued a notice intimating his intention to become separate to the other coparceners and thereafter instituted a suit for partition. He claimed in the suit besides partition of the properties that a provision should be made in the decree for partition, for the marriage expenses of two of his sons one of whom was however married before the date of the decree. Of course if the family were joint the marriage expenses should have been met out of the family funds; but if there was a division there was no liability on the family property to meet the marriage expenses of the divided members. The High Court held that until the decree for partition the joint family status was not affected and that therefore the liability of the family continued until then. The Privy Council reversed this decision and applying the principle of Girja Bai v. Sadashiv Dhundiraj (1916) 31 M.L.J. 455 : L.R. 43 IndAp 151 : I.L.R. 43 Cal. 1031 (P.C.), held that the notice issued by the plaintiff before the institution of the suit effected a separation and that therefore no provision could be made for the marriage expenses of his sons. At page 495 it is stated:
This view (the view of the High Court) is opposed to the law laid down in Girja Bai v. Sadashiv Dhundiraj (1916) 31 M.L.J. 455 : 1916 L.R. 43 IndAp 151 : I.L.R. 43 Cal. 1031 (P.C.), where it was held expressly, that under the law of the Mitakshara, to which the parties in the present case are subject, an unambiguous and definite intimation of intention on the part of one member of the family to separate himself and to enjoy his share in severalty has the effect of creating a division of the interest which, until then, he had held in jointness. This intention was clearly intimated to the coparceners when the plaintiff Narayana served on them the notice on 30th July, 1909. That notice effected a separation so far as his branch of the family was concerned, and no obligation rested on the joint family in respect of his sons' marriages.
Syed Kasam v. Jorawar Singh (1922) 43 M.L.J. 676 : 1922 L.R. 49 IndAp 358 : I.L.R. 50 Cal. 84 (P.C.), was a case in which an intention to become separate was inferred from the conduct of the parties. In that case all the members of the family by an agreement appointed an arbitrator to partition the property. The arbitrator divided the property into lots and lists were drawn up. After one of the coparceners to whom a lot was given by the arbitrator died, the parties notwithstanding his death acted upon the division made by the arbitrator. These transactions, particularly the claim for partition and the agreement appointing an arbitrator, were held to be sufficient to effect a severance in interest and to prevent right of survivorship. Their Lordships stated,
It is settled law that in the case of a joint Hindu family subject to the law of the Mitakshara a severance of estate is effected by an unequivocal declaration on the part of one of the joint holders of his intention to hold his share separately, even though no actual division takes place; and the commencement of a suit for partition has been held to be sufficient to effect a severance in interest even before decree.
The same view was reiterated by the Privy Council in Balkrishna v. Ramkrishna (1931) 61 M.L.J. 362 : It was also a case where from the conduct of a coparcener an intention on his part to become separate in estate was inferred, and the decisions in Suraj Narain v. Iqbal Narain (1912) 24 M.L.J. 345 : 1912 L.R. 40 IndAp 40 : I.L.R. 35 All. 80 (P.C.), Girija Bai v. Sadashiv Dhundiraj (1916) 31 M.L.J. 455 : 1916 L.R. 43 IndAp 151 : I.L.R. 43 Cal. 1031 (P.C.), and Kawal Main v. Budh Singh (1917) 33 M.L.J. 42 : L.R. 44 IndAp 159 : I.L.R. 39 All. 496 , were referred to. In that case it may be noted that there were also some acts which pointed to the conclusion that they were joint, but the entire conduct had to be considered and an inference drawn from it. The inference of course is one of fact. As the Courts in India found concurrently a clear intention on the part of the coparcener to become separate, their Lordships saw no reason to differ from that conclusion.
25. Babu Ramasray Prasad Chowdhary v. Radhikadevi (1935) 43 L.W. 172, is also an instance where from conduct an inference to become separate was drawn. The corparceners in that case made an application for registration of their separate shares in property jointly purchased and the shares were registered separately. There was also collection of rent in definite shares. These were treated as indications of an intention to become separate. The principle is stated thus at page 174:
It is, however, well settled that a member of a joint family may effect a separation in status by giving a clear and unmistakable intimation by his acts or declarations of a fixed intention to become separate even though he goes on living jointly with the other members of the family and there is no division of property : Balkrishna v. Ramakrishna (1931) I.L.R. 35 All. 300. 680 (P.C.), and that is the sort of separation which the High Court has found to have taken place in the present case.
Here again, the fact that an unmistakable intimation to separate may be deduced from evidence of conduct besides declarations was emphasised.
26. The last of the Privy Council cases, apart from two other decisions which will be dealt with presently is reported in Ram Narain Sahu v. Mst. Makhna (1939) 2 M.L.J. 569 : I.L.R. 1939 All. The facts of that case are somewhat peculiar. Under a preliminary decree in a partition suit a joint share was allotted to two brothers who were defendants in the suit. One of them was a lunatic and was represented in the suit by his wife as his guardian-ad-litem. Before the actual division in pursuance of the preliminary decree, the wife as guardian of her husband applied to the trial Judge for a separation of the shares inter se between the two brothers. The Subordinate Judge granted the prayer and partition of the properties was effected even between the two brothers inter se. There was an appeal against the final decree in the partition suit, and during the pendency of that appeal the lunatic died and his widow became the heir-at-law. The final decree, however, in so far as it contained a division of the properties between the brothers inter se was reversed by the High Court on the ground that the Subordinate Judge had no power to vary the preliminary decree on the application of the lunatic's guardian. The decree of the High Court however contained a direction that by the decree and judgment of the High Court the learned Judges did not intend to decide the effect of the application of the wife on behalf of her husband to separate the property inter se between the two brothers on the joint status between the brothers which should be fought out in a separate suit. The surviving brother thereafter instituted a suit against the widow for a declaration that the property of the lunatic brother survived to him and that he was entitled to recover his share of the property which came into the possession of the widow under the partition made by the trial Court in the earlier suit. On behalf of the widow it was contended that the petition in the earlier suit filed by her brought about a division in status notwithstanding the decree of the High Court which negatived such a right. Dealing with the contention that the decree of the High Court in the partition suit negativing the claim made on behalf of the lunatic for separation of his share had the effect of continuing the family as joint, their Lordships observed at page 687:
It is difficult for more than one reason, to accept this contention. The decision of the High Court proceeded upon the general consideration that the preliminary decree not having provided for the separation of a one quarter share the final decree could not make a separate allotment in respect of it. This was not a matter in any way having special reference to the disability of Deo Narain (the lunatic). If it was right it would have been equally right had Deo Narain been sui juris, and had he declared in the most solemn and explicit manner after the preliminary and before the final decree his intention to become separate in estate and interest. Yet it could hardly be right in that case to hold that because he did not get an allotment in severalty by the final decree he remained joint in status. The gap between preliminary and final decree is not seldom of considerable duration and the ordinary right of a coparcener to effect a separation of his estate, interest or title--as distinct from a partition by metes and bounds-by a proper declaration of his desire to sever, is not abrogated by the mere fact that he has not claimed to exercise it prior to the preliminary decree.
27. All these decisions of the Judicial Committee have clearly and distinctly stated the principle that a unilateral declaration which was unequivocal and which was communicated to the coparceners brings about a disruption or division of the status of a family. There is nothing in any of these cases to indicate that when once the communication of the intention is made which has resulted in the severance of the status, it is open to him to withdraw such intention and nullify its effect so as to restore the family to its original joint status. It is however contended that two decisions of the Privy Council to which we have not so far referred have laid down that such an intention, even after communication resulting in a division in status, could be revoked and that there was locus penitentiae. The two cases are Kedarnath v. Ratan Singh (1910) 20 M.L.J. 900 : 1910 LR 37 IndAp 161 I.L.R. 48 Mad. 254. : 32 All. 415, and Palaniammal v. Muthuvenkatachala Moniagar . The judgment of the High Court which went on appeal to the Privy Council in Palaniammal v. Muthuvenkatachala Moniagar (1924) 48 M.L.J. 83 : 1934 L.R. 52 IndAp 83, is reported in Palaniammal v. Muthuvenkatachala Maniagarar : AIR1918Mad242 . It is necessary to examine the facts of these two decisions closely with a view to decide whether there is any foundation for such a contention and whether the Privy Council intended to lay down that a division in status once brought about by a unilateral act could be undone so as to restore the coparcenary status of the family, which is not permissible under the Hindu law. Of course it is possible to bring about a re-union, but that can only be by an agreement between the parties. The withdrawal of the unilateral act which had already resulted in a division in status cannot amount to an agreement to reunite, and if there are minors even this agreement is impossible.
28. The facts in Kedarnath v. Ratan Singh (1910) 20 M.L.J. 900: 1910 LR 37 IndAp 161 I.L.R. 48 Mad. 254 (P.C): 32 All. 415 (P.C.), so far as they are material for the purpose of this discussion were: Gaya Din, Umrao Singh and Ratan Singh were three brothers. In or about 1859, the Government, who had confiscated their estate granted part of it, viz., Sherpur to Gaya Din by way of grace and not in recognition of any proprietary rights in him. Gaya Din however made statements before competent authorities to the effect that though the grant was in his sole name the three brothers had equal shares and that he was the manager on behalf of all of them. Umrao Singh instituted a suit before the death of Gaya Din in 1869 for a partition and separation of his one-third share. Ratan Singh also seems to have instituted a suit for partition at or about the same time but even during the lifetime of Gaya Din he withdrew that suit and compromised with Gaya Din and continued to live with him jointly. Umrao Singh however continued his suit even after the death of Gaya Din after impleading Gaya Din's widow as his legal representative and ultimately compromised it with her. Under an arrangement between the widow of Gaya Din, Lochan Kuar, and, Ratan Singh the widow was allowed to continue in possession and enjoyment of the two-third share for her life and under the said arrangement the two-thirds share had to pass to Ratan, after her death. The widow died, and Ratan Singh came into possession of the property. Umrao Singh then instituted the suit, out of which the appeal before the Privy Council arose, along with another who supplied funds for the suit, claiming a half share in the estate and in the alternative one-sixth. His case was that Ratan Singh and Gaya Din became divided and that the estate was the self-acquired property of Gaya Din. It was found that under the family arrangement which was admitted by Gaya Din the three brothers became jointly entitled to the estate as members of an undivided Hindu family and that it was not the self-acquired property of Gaya Din. It was also found both by the Judicial Commissioner and by the Privy Council that Ratan Singh remained joint with Gaya Din till the latter's death and that on Gaya Din's death he was entitled to two-thirds of the property. The fact that Ratan Singh instituted a prior suit for partition claiming a one-third share, and that he remained with Gaya Din and withdrew his claim was adverted to at page 426 of the report. On a perusal of the arguments before the Judicial Committee, more fully reported in Law Reports 37 Indian Appeals, 161, it would be seen that the effect of withdrawal of a unilateral declaration after it was communicated did not arise for consideration at all in that case.
29. Mr. De Gruyther's contention was that Umrao's separation operated as a complete partition not only between himself on the one hand and Gaya Din and Ratan Singh on the other but also between Gaya Din and Ratan Singh inter se, and that in any event it had the effect of throwing the burden on Ratan Singh of establishing that he and Gaya Din agreed to re-unite or to remain united. In reply to this contention Sir R. Finlay urged that there was no presumption that Umrao's separation effected a partition of title between Gaya Din and Ratan Singh and that there was no proof of separation between the two brothers Gaya Din and Ratan Singh or of any wish or intention to separate. He also argued that there should be some act or binding declaration of intention before a division of title between the brothers Gaya Din and Ratan Singh could be held to be established so as to put an end to the right of survivorship claimed by Ratan Singh. In reply to this argument Mr. De Gruyther, however, did not contend, as he would possibly have contended if there was any substance therein, that the institution of the suit for partition by Ratan Singh and its withdrawal during the lifetime of Gaya Din had that effect. The question therefore of the effect of withdrawal of an intention to separate communicated to the other members was not before the Privy Council and it is difficult to see how this case can be treated as an authority in support of the contention that such an intention is revocable. The mere claim for a partition need not necessarily imply a fixed determination and communication of an intention to divide the title and hold the property in severalty. It is merely a piece of conduct from which an inference for or against the expression of such an intention may be deduced according to the facts and circumstances of each case.
30. This leads us to a consideration of the next decision of the Privy Council which it is urged establishes that after communication of an intention there is locus penitentite and that it can be revoked. That decision is Palaniammal v. Muthuvenkatachala Moniagar The suit in that case related to the partition of an estate known as the Vadimitta estate. The estate was purchased sometime in 1834 by one Periyar Muthukumaraswami. He died in 1834 leaving a will in and by which he partitioned the property between his six sons by his first wife and the one son by the second. In 1842 a suit was filed in the Zilla Court of Tinnevelly by an ancestor of the plaintiffs in the action which was the subject-matter of the appeal before the Privy Council. In that suit a partition of the estate was claimed on the basis of the will left by Muthukumaraswami. The suit was resisted by the eldest son on the ground that the estate was not partible and that the will executed by the father was invalid under Hindu law. The Zilla Judge found that the estate was partible property and that the will was invalid. He however divided the property giving one half of the estate to the six sons of Muthukumaraswami by his first wife and the other half to the son by his second wife according to what is called Pathnibhagam. There was an appeal against that decision to the Sudder Court, and in the appeal it was held that the estate was partible, that the will was invalid and that the division effected under the decree of the Zilla Court was wrong and the estate was divisible between the several sons equally. The Sudder Court declined to grant a decree dividing the estate in accordance with Hindu law on the ground that the suit was instituted only for a division according to the will and not in accordance with the law of inheritance. During the pendency of the appeal in the Sudder Court the great grandfather of the plaintiffs in the subsequent suit who was the first plaintiff in the Zilla Court filed a razinama whereby he expressed his wish not to press for partition of the estate and to leave it in the hands of the eldest son. The effect of the proceedings in the suit and of the razinama on the status of the family particularly in relation to the plaintiffs' branch was considered by the High Court in its judgment. The High Court was of opinion that the proceedings in that suit and the razinama did not evidence an intention on the part of the great grandfather of the plaintiffs to separate himself from the elder branch. The suit for partition itself was not on the footing that it was joint family property but was merely to enforce a share in the estate in pursuance of the directions contained in the will of the father. It is an instance of inferring from conduct an intention to separate, and taking the entire proceedings into consideration the High Court came to the conclusion that no such intention was ever manifested in the course of those proceedings. Kumaraswami Sastri, J., observes at page 775 of the report Palaniammal v. Muthuvenkatachala Maniagarar : AIR1918Mad242 .
Assuming the mere filing of a plaint is sufficient to sever the status of the coparcener it seems to me that till a decree is passed in that suit it is open to the plaintiff to change his mind and to withdraw the suit so as to leave him in the same position as if no suit had been filed. I can find nothing either in Hindu law or in the decided cases to countenance the view that a mere expression of an intention to separate is irrevocable.
There being no express declaration of an intention to separate, and it being a case where such an intention had to be inferred from the conduct of the parties in the suit, it is difficult to see how the statement by the learned Judge is an authority for the position contended before us. No one could suggest that a mere filing of a plaint will be sufficient to sever status, if, as pointed out by Sadasiva Aiyar, J., in Soundararajam v. Arunachalam Chetty (1915) 29 M.L.J. 793 : I.L.R. 39 Mad.159, the plaint does not proceed on the footing of an intention or exercise of the volition by the coparcener instituting the suit to hold the property in severalty from the moment of the institution of the suit. Further, a mere expression of intention is not sufficient in law to bring about a division in status. The intention must be unequivocal and definite in the sense that from that very moment the person manifesting such intention desires to become separate in status and to hold the property in severalty. It must be communicated also. It is open to a person merely to hold an intention, but he may not carry out that intention to effect with the consequence that no division of the right or the status results therefrom. The learned Judge was not at all considering and was not called upon to consider the question whether, if by reason of the communication of the intention a division of the status has resulted, it was open to that person by his unilateral act to undo it, consistent with the principle of Hindu law that when once there is a division the coparcenary cannot be again brought into existence except to the limited extent of bringing about a re-union by agreement between the parties.
31. When the matter went up to the Privy Council, their Lordships confirmed the decision of this Court. At page 258 the following passage occurs:
The fact that any member of a joint family has separated himself from his coparceners may be proved by his suing for partition of the joint family property, and if the suit is decreed the date of his severance from the joint family will, if nothing else is proved, be treated as the date when the suit was instituted. In Kedamath v. Ratnan Singh (1910) 20 M.L.J. 900 : 1910 L.R. 37 IndAp161 : I.L.R. 32 All. 415, a member of a joint Hindu family had filed a plaint claiming a partition but afterwards had withdrawn it, and the Board held that no severance of the joint status resulted. Their Lordships see no reason to depart from that view, although such a plaint, even if withdrawn, would, unless explained, afford evidence that an intention to separate had been entertained, see Girja Bai v. Sadashiv Dhundiraj (1916) 31 M.L.J. 455 : 1916 L.R. 43 IndAp 151 : I.L.R. 43 Cal. 1031 and Kawal Jvdin v. Budh Singh (1915) 29 M.L.J. 793 : I.L.R. 39 Mad.159. In a suit for partition which proceeds to a decree which was made, the decree for a partition is the evidence to show whether the separation was only a separation of the plaintiff from his coparceners or was a separation of all the members of the joint family from each other. It appears to be obvious to their Lordships that in a suit for partition no effective decree can be made for a partition unless all the coparceners whose addresses are known, are parties to the suit, and that it is the decree alone which can be evidence of what was decreed.
From this it is argued that the Privy Council really recognised that an intention was revocable even after it was communicated. It seems to us that in this passage their Lordships are merely considering the effect of conduct evidenced by the institution of the suit for partition and the decree in such a suit. If there was no declaration of intention in the plaint and the matter had to be judged by the conduct in the suit, the fact that the claim for partition was withdrawn is a material element t6 be considered in inferring whether an intention to sever did or did not exist. The reference to the decision in Kedamath v. Ratan Singh (1910) 20 M.L.J. 900 : 1910 L.R. 37 IndAp161 : I.L.R. 32 All. 415 (P.C.) can be justified only on that footing, as we have already shown that the question did not at all arise for consideration in that case. All that the plaint in such a suit would establish is that the coparcener entertained an intention to separate; but whether he had expressed such an intention in the plaint to become severed in status immediately and intended to convey that intention by that plaint to the other members is a different matter and has to be judged from the language of the plaint in each case. The reference to the two decisions in Girja Bai v. Sadashiv Dhundiraj (1916) 31 M.L.J. 455 : 1916 L.R. 43 IndAp 151 : I.L.R. 43 Cal. 1031 (P.C.) and Kawal Main v. Budh Singh makes it clear that their Lordships were fully alive to the principle that when once an intention is expressed and communicated, the status of the person is thereby affected which it is not possible to nullify or undo. Their Lordships also state at page 258 that when once a joint Hindu family separates, the family or any of its members may agree to re-unite as a joint Hindu family, but that is of rare occurrence and it requires strict proof to establish the same. This is the only mode by which to a limited extent the effect of a division can be got rid of. It is impossible to hold that their Lordships are laying down in the succeeding paragraph a principle which is opposed to Hindu law. On the facts of the particular case the conclusion of their Lordships was as follows:
Their Lordships think that so far from the members of that joint family intending to separate their object probably was to establish themselves, if possible, as a joint family with an impartible estate descending according to the rule of lineal primogeniture with rights of maintenance and other privileges for the junior members. Such a joint family could not be. established in modern times.
This passage, in our opinion, gives the real basis of the judgment of their Lordships. Their Lordships were only trying to ascertain the intention of the members of the family, which was according to their Lordships' finding to create a joint family with an impartible estate. Their Lordships finally held that such creation was unknown to Hindu law.
32. An examination of the decision of the Judicial Committee leads us to the conclusion that there is no foundation for the contention urged before us on behalf of the respondents. It only remains for us to refer to the decisions of our and other High Courts cited before us. In Vemi Reddi v. Nallappa Reddi (1920) 11 L.W. 611 decided by Sadasiva Aiyar and Spencer, JJ., the plaintiff instituted a suit against his father for a declaration that the mortgage executed by the father was not binding on him on the ground that the mortgaged property had fallen to his share in an earlier partition. After the institution of the suit he filed a petition to amend the plaint so as to include a prayer for partition in case the Court were to hold that the earlier partition was not established. He subsequently withdrew that petition stating that he did not intend to press the question of division and also withdrew the suit with liberty to file a fresh suit for a partition. He subsequently instituted a suit for partition on an alternative basis to get the earlier partition established or if that was not found to be true, for a division of the family properties. One of the questions in that case was the effect of the amendment petition filed in the earlier suit which was subsequently withdrawn. This contention however was not raised in the Courts below but was raised for the first time in the High Court. The conclusion of Sadasiva Aiyar, J., was that the petition did not contain an unequivocal and final expression of an intention to become divided in status. Spencer, J., treated it as a piece of conduct along with others from which an inference of an unequivocal intention had to be drawn. Both the learned Judges thought that the conduct of the plaintiff in instituting the former suit and in applying to get the plaint amended and thereafter withdrawing this petition and withdrawing the suit did not constitute an unambiguous expression of intention resulting in a separation of status. Palaniammal v. Muthuvenkatachala Maniagarar : AIR1918Mad242 was also referred to.
33. Krishnaswami Naidu v. Nammayya Naidu (1924) 20 L.W. 540 is a case similar to Vemi Reddi v. Nallappa Reddi1. The plaintiff instituted an earlier suit for partition and withdrew it with liberty to bring another suit on condition of paying the costs. He failed to pay the costs but continued to live jointly with the other coparceners. He thereafter instituted a fresh suit for partition. The learned Judge was of opinion that their Lordships of the Privy Council did not intend to lay down a general principle that the filing of a suit for partition was sufficient in all cases to constitute a severance in status, and that there was no authority for holding that every such declaration was irrevocable. This again, in our view, is a case where from conduct evidenced by the institution of the partition suit and its withdrawal an intention to sever could not be inferred. Phillips, J., follows this opinion in Ganapathi v. Subramaniam Chetti : AIR1929Mad738 sitting with Madhavan Nair, J. There a Hindu father instituted a suit for partition for himself and on behalf of his minor sons against his father, his brother and his sons. Before a decree was passed, the grandfather died and subsequently the father, i.e., the plaintiff. One of the sons who became a major elected to continue the suit for himself and also on behalf of his minor brother. The mother of the minor plaintiff however was opposed to that course and did not want a partition for the minor. The minor was therefore transposed as a defendant. The other coparceners had no objection for a division. The trial Gourt passed a decree awarding a one-third share to the major brother for himself and also on behal, of his minor brother. There was then an appeal to the High Court on behalf of the minor. It was contended on behalf of the minor that it was not advantageous to the minor to become divided from the defendants as his share would be increased by the death of the grandfather. It was argued that the institution of the suit by the father had not the effect of bringing about a severance between his branch and the other branches. The learned Judges accepted this contention, and in our view their decision on this point is wrong as it is opposed to the Privy Council decisions in Mst. Jatti v. Banwari Lal and Ramalinga Annavi v. Narayana Annavi (1921) 43 M.L.J. 428 : 1921 L.R. 49 IndAp 168 :1019 I.L.R. 45 Mad. 489 (P.C.). The learned Judges thought that their view was supported by the decision in Palaniammal v. Muthuvenkatachala Moniagar but in that case the question was not between the father and his descendants but between persons standing in the same degree. In such a case no doubt the separation of one member does not necessarily create a division between all the members, but it is a totally different thing where the father as the head of the family of his branch severs himself from the others. Not only himself but his descendants as well would become separated from the other branches. The learned Judges in view of this conclusion thought that the minor stood to gain by not separating himself from the rest. This again is a decision in which there was no express declaration but one had to be inferred from the conduct. The observation at page 851 in Ganapathi v. Subramania Chetti : AIR1929Mad738 that:
In this view it would be difficult to hold that a declaration of intention by the father, which is subject to revocation, must necessarily effect a separation of his sons from that date.' cannot refer to a case where the separation had already been brought about by communication of the intention.
34. Thavasimuthu v. Thavasimuthu : AIR1931Mad824 is a decision of Ramesam, Officiating Chief Justice and Cornish, J., in which the effect of the institution of a suit for partition again came up for consideration. The learned Judges were of opinion that the institution of a suit for partition effects a severance in status conditionally, the condition being that the suit is proceeded with and not withdrawn. This must be understood to mean that a mere suit for partition, the plaint in which does not amount to or does not contain an intention to separate, has not the effect of bringing about a division in status from the moment of the institution of the suit. The observations of Venkataramana Rao, J., in Rama Rao v. Venkatasubbayya (1937) 46 L.W. 309 and Krishnan Pancfalai, J., in Annamalai Cheitiar v. Koothappudayar (1932) 38 L.W. 280 have also to be understood in the same light.
35. There is nothing in the decisions in Chockalingam v. Muthukaruppan : AIR1938Mad849 . and Diravyam v. Veeranan : AIR1939Mad702 to support the contention on behalf of the respondents. In the latter case, even the papers relating to the withdrawal of the suit for partition were not on record. As the fact of withdrawal was admitted it was argued that the onus of proving that the institution of the suit did not effect a severance in status was shifted to the other side, and reliance was placed in support of the contention upon the decision in Palaniammal v. Muthuvenkatachala Moniagar the learned Judges said:
This seems to us to read too much into their Lordships' observations. Referring to Kedar-nath v. Ratan Singh (1910)20 M.L.J. 900 : 1910 L.R. 37 IndAp 161 : I.L.R. 32 All. 415 (P.C.), their Lordships said that they saw no reason to depart from the view there laid down and only added that the plaint so presented, even if withdrawn, would, unless explained, afford evidence that an intention to separate had been entertained. This can hardly be read as laying down any rule of law or even a presumption. It only seems to suggest a possible inference of fact. It is not unlikely, as observed by the learned Subordinate Judge, that in this case the ninth defendant instituted the suit at a time when he thought that he would get some benefit out of it but that when he found that there would be nothing left after payment of the debt due by the family he did not think it worthwhile to proceed with the suit. These circumstances do not seem to us to warrant the conclusion that he became divided merely by the presentation of the plaint.
We respectfully agree with this view of the decision in Palaniammal v. Muthuvenkatachala Moniagar .
36. Of the decisions of the other High Courts referred to in the course of the arguments before us it is only necessary to refer to some of them. In Banke Bihari v. Brij Bihari I.L.R. (1928) All. 519 a member of a joint Hindu family sent a registered notice to the other members demanding a partition, but he abandoned that intention to separate a day or two later as a result of an agreement between the members of the family. The question was whether in the circumstances there was a severance in status. The actual decision in the case was that as the other members also agreed to the abandonment of the intention, there was no separation in law. Of course the decision can be justified on the ground that with the consent of the members there was a re-union. If it is to be treated as an authority for holding that the intention is revocable, we must respectfully dissent from it. The decision in Joala Prasad Singh v. Mst. Chanderjot Kuer I.L.R. (1938) Pat. 430 is only an authority to the extent of indicating the modes by which an intention may be established or proved, and following the decision of the Privy Council in Girja Bai v. Sadashiv Dhundiraj (1916) 31 M.L.J. 455: 1916 L.R. 43 IndAp 151: I.L.R. 43 Cal. 1031, it was pointed out that as intention has to be proved in a Court of Justice it can be established by evidence. The evidence may consist of the filing of a plaint claiming partition or it may take some other form, but it is no more than evidence of the intention to separate. In that case the filing of a plaint was not considered as evidencing a clear communication of an intention to separate, and the learned Judges declined in second appeal to interfere with that finding of fact which was reached by the Courts below.
37. The question was examined at length by the Nagpur High Court in Shankar Singh v. Gulabchand I.L.R. (1945) Nag. 444. The learned Judges held that the severance effected by an unequivocal intention to become separate which was communicated could be nullified provided all interested consented to a re-union. The facts of the case are somewhat analogous to the present case. There were two brothers Kesharsingh and Kallusingh. The plaintiff in the suit was an illegitimate son of Kesharsingh by a permanently kept concubine. The plaintiff claimed in the suit that an award made by the Debt Conciliation Board did not bind him and that he was entitled to an injunction restraining the defendants from enforcing it. His case was that Kesharsingh became divided in status from Kallusingh which was denied by the defendants. Kesharsingh and Kallusingh were admittedly joint at one time, but as Kesharsingh was wasting away his property Kallusingh instituted a suit for partition in 1933. Though the plaint in that case was not exhibited it was common ground between the parties that in the plaint Kallusingh did express an intention to separate from the family. During the pendency of the suit Kesharsingh died. Kallusingh thereafter applied for permission to withdraw the suit. In the application for withdrawal Kallusingh stated that by Kesharsingh's death the very reason for instituting the suit for partition had disappeared and that he was therefore induced not to cause a separation in the family and thus to abandon his original intention to separate himself from the family. The question that had to be considered was the effect of this withdrawal. The learned Judges after an examination of the authorities held that the severance took effect as a result of the suit instituted by Kallusingh and that there were only two possible alternative modes of bringing about the former position of jointness, i.e., either by invoking the principle of re-union, or by holding that a locus penitentia to resile was permissible, the severance in interest being only provisional. Of these alternatives, the learned Judges preferred the former. The reasons for this view are contained in the following paragraph:
We feel there are objections in principle to the latter view. Every member of a joint family has a right to bring about a severance of interest. That is an incident of joint ownership. But the moment severance is effected the member separating ceases to be a member of a joint family and we find it difficult to see how a person who is not a member of the family can join it or rejoin it, by unilateral action. Equally it seems wrong in principle to permit a person who has severed his interests to do something which will affect the status and rights of the other members by unilateral action.
The two Privy Council decisions in Kedarnath v. Ratan Singh (1910) 20M.L.J. 900 : 1910 L.R. 37 IndAp 161 : I.L.R. 32 All 415 I.L.R. 48 Mad. 254 and Palaniammal v. Muthuvenkatachala Moniagar are explained by the learned Judges on the footing of re-union, if really there was a severance in those two cases. Palaniammal v. Muthuvenkatachala Moniagar was explained also on the basis that it was really a case in which on a consideration of the evidence the Judicial Committee came to the conclusion that there was never any intention to separate and that the object of the suit was not to effect a partition but only to establish that they were joint as indicated in the last paragraph of the judgment of their Lordships which has already been quoted. We respectfully agree with this decision of the learned Judges which is correct both on principle and on authority.
38. The Bombay High Court in Gangadhar Rao v. Ramchandra : AIR1946Bom146 expressed the opinion that by an agreement the parties might continue to be joint as before. Nobody can quarrel with this, as from such an agreement it is possible to infer a re-union so long as there were no minors, but the statement at page 147 (column 2) to the effect that an unequivocal demand for partition should not only be communicated but also should be persisted in order to bring about a division in status is not supported by any authority. Of course, if with the consent of the other members it was abandoned or withdrawn so as to constitute an agreement to re-unite, that is a different matter altogether. We are therefore of opinion that save in the case of a re-union it is not open to a member of a coparcenary governed by Mitakshara law to revoke or withdraw an unambiguous intention to separate communicated to the other members, after such communication.
39. This leads us on to a consideration of the effect of the proceedings in the suit, O.S. No. 63 of 1933. It is not contended before us that the plaint in that case, Ex. C, does not contain an unambiguous declaration of an intention to separate. After setting forth the facts which influenced his determination to become separate the second defendant who was the plaintiff in that suit alleged in paragraph 5:
Therefore, the plaintiff being unwilling to remain joint with the defendants has decided to become divided and he has filed this suit for separation of his one-fifth share in the assets remaining after discharging the family debts separated and for recovery of possession of the same.
It is also common ground that this was communicated as the suit summonses were served on all the defendants and in fact the third defendant by Ex. C-2 his written statement, expressed also a similar intention. The mother of the plaintiff and the first defendant also filed a written statement, Ex. C-I, on behalf of the minors claiming a partition. After the issues in the suit were settled and the suit was ready for trial Jaggarao, the first defendant, in that suit died, and on 21st November, 1934, the second defendant made the following endorsement on the plaint:
As the first defendant had died and as the plaintiff himself had to manage the family, the plaintiff hereby revokes the intention to divide expressed in the plaint and agreeing to remain as a joint family member, he withdraws this suit.
Till the death of Jaggarao, therefore, the second defendant persisted in his claim for a partition, and all the members presumably agreed that there should be a partition. This communication of intention undoubtedly brought about a division in status. The third defendant was a major, and he also communicated his intention and he never withdrew it. No doubt, as the suit did not end in a decree for partition the intention expressed by the guardian on behalf of the minor plaintiff and the present first defendant may not be of avail, but during the pendency of the suit till the death of Jaggarao undoubtedly all the members agreed that there should be a division of the property. An agreement to abandon or to unite is not possible in this case as at that time the plaintiff and the first defendant were minors. In the light of the principles already discussed we are clearly of opinion that there was a division in status of defendants 2 and 3 as a result of the proceedings in the suit, O.S. No. 63 of 1933.
40. The effect of this conclusion is that the alienation of item 2 of D schedule in 1935 under Ex. O, and of E schedule under Ex. O-i, also in 1935 and the sale of items 2 and 3 of F schedule in execution of the decree in O.S. No. 57 of 1935 did not bind the plaintiff and the first defendant as defendants 2 and 3 had no right to affect the interests of the plaintiff and the first defendant as they were no longer managers. The sale however of item 2 of D schedule was for discharge of a binding family debt under Ex. II. The sum of Rs. 6,400, the consideration for Ex. O was paid to the mortgagee under Ex. II and with this payment the mortgage debt was fully discharged. Under the sale deed the purchaser was directed to pay the amount in full discharge of the mortgage debt and was also directed to obtain the return of the mortgage deed and retain the same with him as a voucher. The endorsement Ex. Il-d on the mortgage, the recital in the sale deed and the evidence of D.W. 9 the brother of the nth defendant, and of D.W. 11, the 11h defendant himself, fully support the contention that the payment fully discharged the mortgage debt. Apart from any other consideration, as the mortgage debt was completely discharged by this payment, the 11th defendant would be entitled under law to subrogation, and as the plaintiff and the 1st defendant derived the advantage of getting the property freed from the mortgage, they are bound to pay their share of the debt before they are permitted to recover their share in the property covered by Ex. O. The plaintiff and the first defendant therefore should each pay 1/5th share of the consideration of the sale under Ex. O. The interest on the amount payable by the plaintiff and the mesne profits attributable to their shares of the property may be set off and therefore there should be a direction to pay the money only from the date of suit with interest and that the 11th defendant should be made accountable for mesne profits of the share of the property of the plaintiff and the first defendant also from that date.
41. As regards E schedule, the sale of course is not binding on the plaintiff and the first defendant, and there was also a direction by the lower Court that out of the consideration for the sale, as only a portion of it was binding, the plaintiff and the first defendant should each pay a sum of Rs. 70-1-0 as condition for recovery of possession of their respective shares from the 13th defendant. No doubt in respect of this document, the alienee and the 13th defendant may not be entitled to subrogation, though a part of the amount was paid for discharge of the mortgage debt under Ex. II. As the plaintiff and the first defendant however have derived advantage of this payment which went in discharge of the mortgage debt barring a small sum and as the sale is void so far as they are concerned, they are bound to pay Rs. 70-1-0 as a condition for recovery of their share of the property, and the direction of the Courts below will stand.
42. As regards F schedule, in the view we have taken of the effect of the proceedings in the earlier partition suit, it is really unnecessary to deal with the reasoning of the learned District Judge based on the Full Bench decision in Venkatanarayana v. Somaraju : (1937)2MLJ251 ; but, in our opinion, the learned District Judge was wrong in his conclusion that the present case falls within the principle of the Full Bench decision. These items were the subject-matter of an agreement of sale dated 15th December, 1934 (Ex. VI) by which defendants 2 and 3 both for themselves and on behalf of the minor members of the family including the plaintiff and the first defendant purported to sell to Sitharatnam for a sum of Rs. 6,400 the property, item 2 of D schedule, which was subsequently sold to the 11th defendant. They received an advance of Rs. 450 under the agreement and the balance was agreed to be paid towards the discharge of the mortgage under Ex. II. Under this agreement defendants 2 and 3 covenanted to get the sale deed executed also by the mother of the plaintiff and the first defendant and also by the mother of Jaggarao's son who was also a minor. The sum of Rs. 450 was utilised for discharge of some binding debt. For some reason or other the sale could not be completed. Seetharatnamma filed the suit, O.S. No. 57 of 1935, for recovery of the advance paid under the agreement and also Rs. 500 as damages. The suit was decreed on the 29th of September, 1936. To that suit the only parties were the present second and third defendants. The decree was a personal decree against the two defendants for the sum claimed in the plaint. The plaint in that suit is filed as Ex. IV-c, and from a perusal of the allegations in the plaint and from the fact that the relief was claimed only against defendants 2 and 3 personally and no claim was made against the family properties, we are clearly of opinion that they were sued in their personal capacity and not as managers of the family. The claim was to enforce payment of the amount of advance received by them personally and also for damages for the breach committed by them. There is no indication either in the plaint, the judgment or the decree that they were sued in a representative capacity and that the decree was obtained on that footing. In pursuance of this decree items 2 and 3 of F schedule were brought to sale and were purchased by the 14th defendant who obtained a sale certificate, Ex. Vl-e, on the 23rd of February, 1939.
43. The argument of the learned advocate for the respondents is that as, in fact, defendants 2 and 3 were managing the 'family property and business, and as the amount of advance was applied for discharge of a binding debt the decree must be treated to be a decree against defendants 2 and 3 in a representative capacity as managers of the joint family, but we are unable to accept this contention. As pointed out in the later Full Bench of five Judges in Nagireddi v. Somappa : AIR1943Mad1 , if a manager who is not the father was sued on a contract entered into by him and the decree contains no direction that it should be executed against the family property the decree is only a personal decree and not against the manager. The undertaking in the contract to secure the concurrence of the mother and to get a conveyance also from her on behalf of the minors is an indication that the contract was not entered into in a representative capacity. We are therefore unable to agree with the learned District Judge that the decree was obtained against defendants 2 and 3 as managers of the family. In this view, it becomes unnecessary to consider the correctness of the decision of the Full Bench of three Judges in Venkatanarayana Somaraju (1937) M.L.J. 251 : I.L.R. 1937 Mad. 880, in view of the later Full Bench decision of five Judges in Nagireddi v. Somappa : AIR1943Mad1 . In any view, therefore, the plaintiff and the first defendant would be entitled to a decree for partition of items 2 and 3 of F schedule.
44. The result is that the second appeal in so far as it relates to A schedule and item 1 of D schedule should be dismissed with the costs of defendants 5 to 7 and the 10th defendant. The appeal relating to item 2 of D schedule and items 2 and 3 of F schedule should be allowed. The plaintiff and the first defendant would be entitled to recover their share in item 2 of D schedule on condition of their paying one-fifth of the consideration under Ex. O with interest from the date of suit till payment at six per cent, per annum. The decree in respect of E schedule will be confirmed. The plaintiff and the first defendant are entitled to their costs throughout from the respective defendants in respect of item 2 of D schedule and of F schedule. There will be no order as to costs in respect of E schedule. Though the first defendant in his written statement claimed also a decree for partition and separate possession of his share, no decree was, in fact, granted to him either by the trial Court or by the appellate Court. We think that this defect should now be remedied by granting a decree also to the first defendant but subject to payment of the court- fee by him. A decree therefore will be drafted in the light of this judgment in modification of the decrees of the Courts below. In other respects the decree of the trial Court will stand. The plaintiff and the first defendant pay in the first instance the court-fee payable to Government in all the Courts and recover the same from the respective defendants to the extent of their success. The court-fee payable will be a charge on the suit property.
45. This second appeal having been posted for orders this day, the Court made the following order:--There will be an enquiry into mesne profits under Order 20, Rule 12, Civil Procedure Code, in respect of item 2 of D schedule from the date of plaint and in respect of 2 and 3 of F schedule from 25th July, 1939.