1. This is an appeal against an order passed by the learned Principal Subordinate Judge of Cocanada in an execution application. It will be seen from the geneological table that originally there were five branches of the family and they may be referred to as the first, second, third, fourth and fifth branches, the appellants' branch being the third. It is only necessary to add that Venkatarayanim Garu had four sons, Ramarayanim Garu one son and Bhavannarayanim Garu four sons whose names appear as signatories to Ex. H, a power-of-attorney. The first respondent by his execution application sought to attach some immovable property as being the separate property of Dharma Rao, the third branch. The appellants contend that their father Surya Rao alias Kasibabu and his brother Dharma Rao were undivided and that the properties of Dharma Dao devolved on them by survivorship and are not liable for the simple debt of Dharma Rao against whom the respondents have obtained a decree on a promissory note in a suit filed in 1930. The appellants and Dharma Rao's daughter are impleaded as being in possession of the assets of Dharma Rao. Kasibabu died in 1910 and Dharma Rao in 1929. The respondents base their case on Ex. B, a transfer of lands by Kasibabu to Dharma Rao, which they contend effects if not a total severance at least a severance so far as the properties thereby transferred are concerned. The appellants reply (whilst denying that Ex. B effects any severance) that at the most a partial severance would have been brought about and that if it were so Dharma Rao subsequently blended these properties with the rest of the joint family property so as to make them part thereof. They also contend that Ex. B was a nominal document not intended to be acted upon but brought about purely to put the properties out of Kasibabu's reach and thus prevent him from dissipating them (vide paragragh 7 in E.A. No. 772 of 1931). It is convenient to remark here that, although no issue as to blending was framed, the plea was specifically taken in paragraph 10 of the petition and the necessary materials for considering the plea are on record. I have had the advantage of reading my learned brother's judgment and agree with his conclusions on the facts that Ex. B was a nominal document and that the alternative plea as to blending has been substantiated by the appellants. I do not propose to add anything with regard to those aspects of the case. But in addition to these questions of fact the respondents raise an interesting point of law.
2. The history of this family appears to be as follows: On 12th February, 1897, under Ex. TT-3 it is common ground that the fifth branch became separated from the four other branches Mockett, J. but leaving them joint. In the schedule to Ex. TT-3 the joint family properties at that time are set out. Historically, Ex. B comes next as it was executed on 22nd March, 1900. It is undoubted that in 1900 the first, second, third and fourth branches were undivided. In 1908 under Ex. J-12, an entry in a note book of Dharma Rao, the four branches became divided in status but they continued to live so far as the properties were concerned as tenants in common until 1922 when under Ex. II dated 22nd November, 1922, the properties of the family were partitioned. These facts are not in controversy. So it will be seen that, although there was a division in status in 1908 between the four branches, there was no division of property till 1922 and in 1900 there was neither division in status nor division of property. But the respondents contend, and the learned Judge has so held, that Ex. B dated 22nd March, 1900, effected a separation. In paragraph 5 of the counter petition the respondents plead that:
Thereafter Dharma Rao became divided. The entire share of the property of Dharma Rao forms his separate property.
3. The learned Subordinate Judge holds as follows:
Hence Ex. B in this case virtually effected the separation of Kasibabu. Whatever opinion one may have about its effect on the properties not covered by Ex. B or Ex. C, it is enough to say that, so far as the properties in question are concerned, they belonged to I Dharma Rao wholly by virtue of Ex. B and that in respect of them Kasibabu became a separated member and could not have had any rights after 1900.
4. This finding is difficult to understand when the all-important fact is borne in mind that admittedly in 1900 the four branches were joint. The division therefore of Kasibabu must be from the rest of the family leaving Dharma Rao and the other three branches undivided. But a consideration of the judgment and the argument from the bar seems to suggest that what the respondents had in mind that there was a separation between Kasibabu and Dharma Rao alone. The niceties of these distinctions have been overlooked in the lower Court. An examination of Ex. B shows that, in the first place, it is in favour of Dharma Rao alone who is described as Kasibabu's elder brother; secondly, that there are no words therein which indicate any intention to divide; thirdly, that it appears to be a form of. conveyance pure and simple of one-tenth of the joint properties belonging to the family as described there under; and fourthly, the list of the properties omits a large number of items which are contained in the schedule to Ex. TT-3 which is what purports to be a complete list of the joint family property. Mr. Venkatarama Sastri who appears for the respondents conceded that many items are not transferred by Ex. B; for example, the inam of the Jayanti people plots 4 to 21 on pages 8 and 9 of the schedule, plots 1 to 6 in Yerangudam village on page 10, and the plot in Garipatnam village on the same page. So Ex. B is a transfer by one member of a branch to another member of the same branch of one-tenth part of his interest in some items of the joint family property. I do not think that at the time of Ex. B Kasibabu had any idea of becoming divided. I think, to put it in simple language, that Kasibabu was at best intending to sell to Dharma Rao, the property referred to in Ex. B.
5. As the case presented to us has largely turned on the legal effect of Ex. B, it is necessary to consider the arguments relating to it. No case has been cited before us in which the facts are identical with those in the present case. As I understand Mr. Venkatarama Sastri's argument, it is this; that an alienation by one of several members of a joint family to one other of part of the property effects a division so far as that part of the property is concerned, even though no intimation of it is made to the other members of the joint family; and it must be emphasised that it has never been suggested that Dharma Rao represented the family as a whole. He rests his argument on the principle laid down in Appovier v. Rama Subba Aiyan (1866) 11 M.I.A. 75 and Ram Chunder Dutt v. Chunder Coomar Mundul (1869) 13 M.I.A. 181 and certain observations of Sadasiva Aiyar, J., in Soundararajan v. Arunachalam Chetty (1915) 29 M.L.J. 793 : I.L.R. 39 Mad. 159. In both the decisions of the Judicial Committee it will be seen that the transfer is made with the consent and knowledge of all the members of the family, that is to say, that if it is shown that the members of an undivided family make among themselves a special agreement that certain specified property shall be the subject of shares, there is a division in status quoad the property specified therein, though no actual division is made. To quote Lord Westbury in Appovier v. Rama Subba Aiyar (1866) 11 M.I.A. 75:
When the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty although the property itself has riot been actually severed and divided.
6. In Suraj Narain v. Iqbal Narain (1912) 24 M.L.J. 345 : L.R. 40 IndAp 40 : I.L.R. 35 All. 80 (P.C.) their Lordships say that what may amount to a separation, or what conduct on the part of some of the members may lead to separation of a joint undivided Hindu 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. It must be remembered that Lord Westbury in Appovier v. Rama Subba Aiyan (1866) 11 M.I.A. 75 had used the English analogy of the joint tenancy and tenancy in common, and in that case Lord Westbury goes on to say on the 'same page:
Then if there be a conversion of the joint tenancy of an undivided family into a tenancy in common of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement, and that is a separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time be claimed by virtue of the separate right.
7. The most recent decision relating to this subject is to be found in Lakshmi Achi v. Narayanasami Naicker : (1929)57MLJ746 , Ramesam, J., referring to Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R. 25 (1902) Mad. 690 remarks as follows:
If a member of an undivided family sells the whole of his share; in some of the family properties or part of his share in such properties but not in other properties, it may be that he continues undivided with the other members in respect of the properties other than those in which the whole or part of his share has been transferred. . . . It almost implies that so far as the properties in which the whole or part of the member's share is sold are concerned, he must be regarded as divided from the other members. But where the sale is not to a stranger but to the remaining members of the family the matter becomes much stronger.
8. The learned Judge then goes on to suggest that the authority of certain observations relating to a stranger-purchaser in Maharaja of Bobbili v. Venkataramanjulu Naidu : (1914)27MLJ409 are discounted by the decision of the Judicial Committee in Girja Bai v. Sadashiv Dhundiraj (1916) 31 M.L.J. 455: L.R. 43 IndAp 151: I.L.R. 43 Cal. 1031 (P.C.) but with all respect I do not understand how this is so. This latter decision of their Lordships lays down that a mere expression of a desire to divide clearly conveyed to the co-sharers effects a division in status regardless of whether the co-sharers desire it or not, but any subsequent partition can be effected either by agreement, or, in the absence of agreement, by invoking the aid of the Court. I am unable to see how any of the cases cited assists the respondents. The legal effect seems ultimately to come to this, that a sale to a stranger, while not affecting the status of the family, gives the stranger a right in a suit for general partition to have the transferor's share given to him, and that a statement of an unequivocal intention to divide which includes the filing of a suit or an agreement inter se effects a devision in status; but so far as the members of the family are concerned, it would seem that there must be contact by way of expression of intention between the transferor member and the rest of the family. Obvidusly as pointed out in the cases now quoted, the intention to divide with regard to a certain part of the property can be evidenced by a sale or an agreement regarding that property between the members of the family. But in this case none of those facts are present. It is nowhere suggested that Kasibabu gave any intimation of anything to the first, second and fourth branches. Ex. B was executed in favour of Dharma Rao and it has been held by Wallis, C.J. and Kumaraswami Sastri, J., in Kamepalli Ayilamma v. Mannem Venkataswamy : (1917)33MLJ746 following the decision of the Judicial Committee in Kawal Nain v. Prabhu Lal (1917) 33 M.L.J. 42: L.R. 44 IndAp 159: I.L.R. 39 All. 496 (P.C) that the intention must be communicated to the co-sharers. At no time was it suggested until 1908 that Dharma Rao became divided with the other branches. Therefore in 1900 when Ex. B was executed no intimation, expressed or implied, of any intention was given to any one except Dharma Rao. At the most then it might be said that there was an intention to become divided from Dharma Rao alone leaving presumably Kasibabu joint with the other branches. But as to this it is common ground that in 1900, Dharma Rao was joint with the other branches, and it is not possible to understand how this legal position can be effected. An examination of Ex. II shows that the effect of Ex. B was never sought to be worked out, and the third share was confirmed in favour of Dharma Rao on behalf of his branch. The learned Counsel for the appellants has attacked the views of Ramesam, J., expressed in Lakshmi Achi v. Narayanasami Naicker : (1929)57MLJ746 but it must be pointed out that the learned Judge when remarking that a sale not to a member of the family may make the matter much stronger is careful to use the words ' to the remaining members of the family' and not to one of the remaining members of the family, and it seems to me that he had in mind the statement by Lord Westbury in Appovier v. Rama Subba Aiyan (1866) 11 M.I.A. 75 where his Lordship particularly emphasises the effect of an agreement by members of an undivided family among themselves with regard to a particular property. A conveyance of lands between two parties is as clear an example of an agreement as can be given. I have already indicated my ' agreement with my learned brother's view that Ex. B was not , a document which was intended to have any effect or was acted upon; but if that view should appear to be wrong, then I hold that, even if it gave any rights to Dharma Rao as against Kasibabu, it did not effect a division in status generally or partially between Kasibabu and Dharma Rao. It is to be noted that Dharma Rao does not appear to have ever attempted to enforce any rights against Kasibabu or his heirs. We have had the advantage of hearing a most comprehensive argument from the Bar, but no case--and many have been cited--has been cited establishing the proposition that a conveyance by one to one other of several members of a part only of his undivided share can effect a division as between the transferor and the transferee alone, nor has it, it would seem, ever been sought to be established until now.
9. For the above reasons and for the reasons given by my learned brother with which I concur it follows that this appeal must be allowed with costs throughout.
Lakshmana Rao, J.
10. The appellants are the sons of Surya Rao alias Kasibabu, the predeceased younger brother of one Chelikani Dharma Rao alias Chinna Nayana who will hereafter be called Dharma Rao and the appeal arises out of an application by them to raise the attachment of certain properties in execution of the decree obtained by the first respondent, in O.S. No. 120 of 1930, on the file of the Subordinate Judge of Cocanada against the assets of Dharma Rao in their hands. The second and third respondents are the married question daughter and sister respectively of Dharma Rao, and the at issue is whether the properties attached are the assets of Dharma Rao or joint family properties which devolve on the appellants by survivorship.
11. The joint family,, consisted originally of eight brothers and Jagannatharayanimgaru the grandfather of the appellants was the manager. Three of the brothers died without male issue and the pedigree of the surviving brothers who continued joint is given below:
| | | | |
Venkata Rama Jagannatha Bhavanna Bhaskara
rayanim rayanim rayanim Garu rayanim rayanim Garu
Garu. Garu. (died 1896) Garu. (died 1888)
| | Chinna Surya Rao.
Dharma Rao Surya Rao
(Chinna Nayana) (Kasi Babu)
(died 1929) (died 1910)
Rajya Lakshmamma _____________________|___________________
(married daughter). | |
Jagannatha Rao Venkata Surya Rao
alias Pedda Babu alias Chinna Babu
first appellant. second appellant.
12. Bhaskararayanimgaru died in 1888 leaving his widow Venkayamma and minor son Chinna Surya Rao, not to mention the female issue, and Venkayamma shifted with her children to her parent's house. Jagannatharayanimgaru died in 1896 and Dharma Rao succeeded him as manager. Partition was demanded by Venkayamma on behalf of her minor son in 1897 and by Exs. TT-1 to TT-3 of that year that branch became separated from the other four branches, leaving the latter joint. The share of Chinna Surya Rao in the movable properties, was given to Venkayamma on his behalf, but the immovable properties were left in the possession of the four branches, on the understanding that they should pay Rs. 45 per month out of the income of his one-fifth share to Venkayamma on his behalf, and apply the balance towards discharge of his one-fifth share of the family debts amounting to Rs. 82,554-13-5.
13. The deeds provide for maintenance of correct accounts, and the arrangement was to continue until the four branches effect a partition among themselves or the minor Chinna Surya Rao attains majority. Two sets of accounts one for the five branches and the other for the four branches were maintained thereafter, and Dharma Rao continued in management. Properties were acquired by the four branches subsequently and Ex. B the sale-deed was executed by Surya Rao alias Kasi Babu, who will hereafter be called Kasi Babu, in favour of Dharma Rao on 22nd March, 1900, soon after attaining majority conveying his one-tenth share in a substantial portion of the family estate including the properties attached. The Sale was admittedly in favour of Dharma Rao individually, and not as manager of the four branches, and the consideration is stated to be Rs. 12,500 made up of Rs. 6,500 and 2,000 the vendor's share of the joint family debt and father's debt, undertaken to be discharged by the vendee, Rs. 500, 400, 300 and 1,000, his personal debts and interest thereon amounting to Rs. 150 discharged out of the consideration, Rs. 1,000 received as earnest money, and Rs. 650 paid before the Sub-Registrar. The document was registered in the house and Kasi Babu continued in the family as before. He was married at the family expense and the four branches continued joint till November, 1908, when as appearing from the entry in
14. Ex. J-12 the general note book of Dharma Rao, they became separated in status and mess. Three sets of accounts were maintained thereafter, namely, one for the five branches, one for the four branches and another called the swantha account of Dharma Rao which according to the appellants is the account of their branch, and Kasi Babu and his family continued with Dharma Rao. The income of the branch from the entire family estate was entered in the swantham account without any distinction being made between the properties conveyed and the other properties, and the household and other expenses of the branch were incurred therefrom. Ex. C the benami sale-deed of his share of the Bharatam or annual allowance payable by the Zamindar of Kolanka and another item of family property, was obtained from Kasi Babu by Dharma Rao in the name of his maternal uncle Tirupathirayanimgaru on 15th January, 1910, and Kasi Babu died soon after leaving a widow and two sons the appellants. The sales did not exhaust the properties in which Kasi Babu was entitled to a share and the appellants and their mother continued to live with Dharma Rao. There was a revenue enquiry in 1912-regarding the record of rights in respect of the lands in patta No. 1 of Chitrada village, some of which are included in Ex. B the sale-deed, and in response to the notice issued to the members of the family, Mangiah the agent of the family under Ex. H the power of attorney dated 27th February, 1909, appeared before the Revenue Officer on 31st December, 1912.
15. Ex. F his statement was recorded by the Revenue Officer, and Mangiah stated that Kasi Babu was a joint sharer in the patta and so the names of his minor sons Dharmarayanimgaru and Venkata Surya Rao Garu who were under the protection of their uncle Dharma Rao should be added with Dharma Rao as their guardian. He gave the names of one of the sons incorrectly and Ex. G the statement was filed by him on 3rd January, 1913, rectifying the error. It is stated therein that the mistake was pointed out by Dharma Rao, and by Ex. SS-3 the order dated 27th February, 1913, the Revenue Officer ordered the inclusion of the names of the appellants with Dharma Rao as their guardian. Nothing further happened till 1922 when by Ex. II the deed of partition the immovable properties specified in Exs. TT-1 to TT-3 which include properties not conveyed under Exs. B and C, were divided by metes and bounds between the five branches, and the third share which comprises the properties attached, was allotted to Dharma Rao.
16. The deed is silent regarding the appellants who were apparently minors at the time under the protection of Dharma Rao, and there are yet other properties to be divided between the four branches. The appellants and their mother continued with Dharma Rao and he died on 28th August, 1929, leaving Ex. III the will dated 10th March, 1927, bequeathing the properties in question to the appellants and other properties to the second respondent.
17. The case of the appellants is that their father was leading a bad life, and Ex. B the sale-deed was brought about lest he should deal with and fritter away his share in the family properties for immoral purposes. There was otherwise no need or occasion for the sale-deed, nor was it supported by consideration. It was a nominal transaction, and the properties were treated as family properties throughout. Ex. C the benami saledeed was brought about for the same purpose, as in spite of married life, their father didnot improve and no distinction was at any time made between the properties covered by Exs. B and C and the other family properties or their income. There never was any division in fact between their father and Dharma Rao nor was any severance effected by Ex. B the sale-deed. Even otherwise the severance brought about would at best be partial and the properties conveyed were blended with the other joint family properties. They would therefore devolve on. them by survivorship and are not assets of Dharma Rao.
18. The first and second respondents in their counters denied that Ex. B the sale-deed was a nominal transaction and contended that it effected a complete severance. The properties conveyed became the separate properties of Dharma Rao and they were not treated as family properties thereafter. The alleged blending was false and there was no other family property with which the properties conveyed could be blended. The mess too was not common and the subsequent treatment of Kasi Babu and his family by Dharma Rao was due to natural love and affection. This cannot confer any rights on them and the properties in question were allotted to Dharma Rao in the partition of 1922. They were thus separate properties and until the will was discovered to be void exception was not taken to the disposition. They are therefore assets of Dharma Rao and would not devolve on the appellants by survivorship.
19. The third respondent did not file any counter and the petition was posted for first hearing to 8th February, 1932. The appellants applied on 8th February, 1932, for the issue of a commission for the examination of certain witnesses, and the petitions were adjourned to 1st March, 1932. The commission was ordered on 1st March, 1932, and the main petition was adjourned to 8th April, 1932. A large number of documents were filed into Court on behalf of the appellants on 10th March, 1932, without notice to the respondents, and the office forwarded them to the Commissioner. Fourteen of them were marked in evidence in spite of objection during the examination of one of the witnesses before the Commissioner, and the decree-holder moved the Court to exclude the documents on the ground that they were not filed before the first hearing. The appellants contended that the procedure relating to suits was not applicable, but the Court ruled otherwise, and ordered that barring 18 documents which by then had been admitted in evidence, the rest will be rejected. The Court was then moved by the appellants to excuse the delay in filing the documents and a statement was filed by their lawyer that the documents were given to him about a week before the first hearing date and could not be filed earlier as they had to be sorted and docketted. In view of its decision that the procedure prescribed for suits was applicable, the Court was also requested to frame the necessary issues and the statement of the lawyer of the appellants regarding the delay in filing the documents was not challenged. The documents were ordered to be received subject to proof, and the following points for determination were settled, namely:
(1) Whether Dharma Rao and his brother were divided.
(2) Whether the sale-deed in Dharma Rao's name was executed nominally.
(3) Whether the attached properties belonged to the petitioners or are they the assets of Dharma Rao.
(4) Whether the will executed by Dharma Rao was acted upon by the petitioners.
20. [His Lordship dealt with the evidence and proceeded.] The Subordinate Judge accepted the case of the appellants regarding joint residence but disbelieved it regarding the nature of the sale-deeds. There would according to him be no occasion for the sale-deeds if the indebtedness of Kasi Babu was not true, and the accounts which do not support the respondents are inconclusive though not fabricated. It was not improbable that Kasi Babu did not want to be saddled with heavy debts and might have liked to have some cash instead of a debt amounting to over Rs. 8,000 or Rs. 9,000 with an off-chance of getting some property left after discharging the debts, and Ex. H the power of attorney would have been signed by Kasi Babu if the sale was not genuine. The statement of Mangiah cannot bind Dharma Rao as Ex. H did not authorise the agent to make any statement, and the subsequent treatment of Kasi Babu and his family was probably due to natural love and affection. That no distinction was made in the accounts by Dharma Rao between himself and Kasi Babu, might have been due to his belief that in spite of Ex. B, Kasi Babu was entitled to his share, and Ex. B was a real sale supported by consideration. Kasi Babu became divided thereby from Dharma Rao in respect of the properties conveyed thereunder and the properties conveyed became the self-acquired properties of Dharma Rao. It was not possible to say what idea Dharma Rao had in his mind in dealing with the income of the entire estate without making any distinction, and Ex. C the sale-deed was also a genuine transaction though it was taken in the name of Tirupatirayanimgaru. The will was acted upon until it was discovered to be void and the properties attached are assets of Dharma Rao. In the result the Subordinate Judge dismissed the application of the appellants and ordered transmission of the decree to the District Court of West Godavari for execution.
21. Hence this appeal and the initial question for determination is whether Ex. B the sale-deed which the respondents contend, effected a severance between Dharma Rao and Kasi Babu, is a nominal transaction. There is no reason to suspect the uncontradicted evidence in the case that Kasi Babu was leading a bad life, and the sale-deed came into existence ' almost immediately after he attained majority.
22. [His Lordship considered the evidence and concluded.]
23. The finding of the Subordinate Judge that it is a real transaction cannot therefore be upheld, and on the evidence we find that Ex. B the sale-deed on which the severance between Dharma Rao and Kasi Babu is founded is a nominal conveyance.
24. The effect of Ex. B the sale-deed, assuming it to be real has then to be considered, and in view of the decision of the Privy Council in Ramalinga Annavi v. Narayana Annavi (1922) 43 M.L.J. 428 : L.R. 49 IndAp 168 : I.L.R. 45 Mad. 489 (P.C.) in which the previous decisions of the Board were considered, it would be idle to contend that under the Hindu Law it is not open to the members of a joint family to make a division and 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 the joint undivided family. No express agreement is necessary for this purpose and it depends on the circumstances of each case whether a severance of interest in respect of a part of the joint estate creates a disruption of the family status. The intention to remain joint as to the rest of the estate may be inferred from the conduct of the parties, and in the circumstances of this case it was not seriously contended before us that the severance if any was total and not partial. It is common ground that Exs. TT-1 to TT-3 left the four branches undivided, and admittedly these branches continued joint until 1908, when by agreement they became separated inter se in status and mess. There was no cesser of commensality between members of these branches till then, and Kasi Babu and his family continued with Dharma Rao thereafter. The real question therefore is whether the sale-deed effected a severance between Dharma Rao and Kasi Babu in respect of the properties conveyed, and under the Hindu Law a partition may be effected either by agreement between the coparceners or by an unambiguous declaration of an intention to become divided. The agreement must be between all the coparceners as otherwise it will lead to the inconceivable position, namely, a severance between the parties to the agreement without any disruption between either of them and the other coparceners, and as pointed out in Kamepalli Ayilamma v. Mannem Venkataswamy : (1917)33MLJ746 to have that effect, the intention to become divided, should be communicated to rill the other coparceners. Two or more members of an undivided family be they members of different branches or of one and the same branch of the family have no legal existence as a separate independent unit, so long as the family remains undivided, vide Sudarsanam Maistri v. Narasimhulu Maistry : (1901)11MLJ353 and it is common ground that the four branches remained undivided until 1908. The sale-deed was in favour of Dharma Rao individually and not as manager of the family, and, treating it as an agreement, it would be an agreement between two members of a branch of the undivided family, which in law cannot effect any severance. Ex. B is a sale simpliciter with the usual recitals and clauses and it does not contain any explicit declaration of an intention to become divided. The subsequent conduct of the parties negatives any implied intention to separate, and it was not suggested that the intention if any was communicated to all the other coparceners. There was therefore no severance by communication of an intention to separate, and as laid down in Maharaja of Bobbli v. Venkataramanjulu Naidu : (1914)27MLJ409 which is still good law, the mere fact that a coparcener makes an alienation does not put an end to the coparcenery between himself and the other members of the family. The act of alienation only makes definite the indefinite interest of the alienor (vide Narayana Sah v. Sankar Sah : AIR1929Mad865 ) and there is no warrant for holding that an alienation of his undivided interest in the entire family estate or a portion thereof, by a coparcener in favour or one or more of the remaining coparceners effects a severance of the alienor from the joint family. The alienation per se cannot be held to be an agreement between the members of the family to become divided or expression by the alienor of his intention to separate from and much less a communication thereof to the remaining members of the family, and as pointed out by the Privy Council in Sivagnana Thevar v. Periasami the alienor acquires rights in the subject-matter of the alienation, notwithstanding the undivided status of the family. The case of an alienation by one coparcener in favour of the only other or all the other coparceners as in Lakshmi Achi v. Narayanasami Ndicker : (1929)57MLJ746 stands on a different footing, as then the alienation would in effect be an agreement between all the coparceners that particular property should thenceforward be the subject of ownership in a particular manner and it is well-settled that by agreement between all the coparceners a severance of interest can be effected between them in respect of the subject-matter of the agreement. An agreement between some of several coparceners cannot bring about that result and on principle the rights of a coparcener alienee who is not the only other coparcener cannot be higher than those of a stranger purchaser. The latter cannot as pointed out in Suraj Bunsi Koer v. Sheo Persad Singh and HardiNarain Sahu v. Ruder Perkash Misser (1884) L.R. 11 IndAp 26: I.L.R. 10 Cal. 626 (P.C.) resist the claim of non-alienating coparceners to the whole of the alienated property, and his only remedy is to enforce his right under the purchase by a suit for general partition. That the non-alienating coparcener or coparceners may sue for recovery of the non-alienated share of the alienated property has no bearing on the point and the decree in such suits can only be subject to the result of the suit for general partition which the alienee may institute. The decision in Iburamsa Rowthan v. Thiruvenkataswami Naick : (1910)20MLJ743 merely extended the right of the sole non-alienating coparcener to his purchaser and as held in Shyam Sunder Rai v. Jagarnath Misra I.L.R. (1923) Pat. 925 one of several non alienating coparceners cannot sue the purchaser for his own share of the alienated property. There is no reason why he should not, if an alienation per se effects a severance between the members of the family, and it is impossible to hold that Ex. B created a severance of interest between Dharma Rao and Kasi Babu in respect of the properties conveyed. Dharma Rao would, if the sale is real, be entitled to the interest of Kasi Babu in the properties conveyed but the sale-deed would not effect any severance between them.
25. It remains then to consider whether if there was a severance, the properties conveyed were blended with the family/properties, and as pointed out in connection with the nature of the conveyance, at no time was any distinction made between the income of the four branches from the several sources including the properties conveyed. There was one general account for the four branches till 1908, and no distinction was made by Dharma Rao, even in the swantham accounts opened by him thereafter. The receipts from all sources were dealt with as a single fund, and Kasibabu and his family were treated as members of the joint family. The idea of Dharma Rao in dealing with his receipt as he did is irrelevant and on the materials on record the alleged blending cannot reasonably be doubted. Properties once brought into a common stock cannot be taken out again, vide Radhakant Lal v. Nasma Begum (1917) 35 M.L.J. 99 : I.L.R. 45 Cal. 733 (P.C.) and as found already the third share was allotted to this branch in 1922, though it was confirmed eo nomine in favour of Dharma Rao. The properties would therefore devolve on the appellants and they are not assets of Dharma Rao in their hands.
26. In the result the appeal is allowed with costs throughout and the claim of the decree-holder to proceed against the properties as assets of Dharma Rao is disallowed.