Venkataramana Rao, J.
1. This is a suit for partition. The plaintiff is the son of defendant 1 by his first wife. Defendants 2 and 60 are his sons by the second wife. The plaintiff was born on 4th August 1908. He instituted the suit through his next friend on 3rd October 1922. He attained his majority on 4th August 1926, and elected to continue the suit on 20th August 1926. Defendant 60 was born to defendant 1 on 4th August 1925 and was added as a party to the suit.
2. One of the questions in this case is, what is the share which the plaintiff is entitled to? If the rights of the plaintiff are to be determined as on the date of the plaint he would be entitled to one-third, but if it is to be determined as on the date when he elected to continue the suit or as on the date of the preliminary decree for partition in this case, he would be entitled to one-fourth. The lower Courts took the view that the plaintiff must be deemed to have been a member of an undivided family till he attained majority and elected to continue the suit, and he can only be given such share as he would be entitled to according to the state of the family on that date, and the family on that date consisted of four members including defendant 60, and he can only be given one-fourth share in the properties to which he was held entitled. It is contended before me by Mr. Kameswara Rao on behalf of the plaintiff, that that view is unsound. The recent Full Bench decision of the Madras High Court in Rangasayi v. Nagarathnaruma, AIR 1933 Mad 890 establishes that a suit for partition instituted on behalf of a minor operates as severance of his status from the joint family of which he was a member from the date of plaint if it ends in a decree and the suit does not abate on his death but can be continued by his legal representatives subject to the condition that the Court has still to find that circumstances existed on the date of plaint which rendered severance necessary in the interests of the minor. The ratio of the decision is that it is competent to a guardian of a minor to manifest the intention to separate on behalf of the minor, and the Court, if it comes to the conclusion that the partition is beneficial to the minor, may adopt the act of the guardian and the minor becomes divided in status as from the date of the plaint. Ramesam, J. observes:
The cases show that the volition indicating a desire for separation and an unambiguous intention to separate cannot be expressed by the minor himself but must be exercised on his behalf by some other person, by a guardian in a private partition and by a next friend in the filing of a plaint. If in the case of a minor the option cannot be exercised by him but should be done by somebody else on his behalf, why should not the exercise of that option on his behalf effect a severance as in the case of an adult
3. Referring to the following observation in Chelimi Chetti v. Subbanna AIR 1918 Mad 379:
In the case of a minor the law gives the Court the power to say whether there should be a division or not, etc.,
Ramesam, J. remarks:
As I said, this is a rule conceived in the interests of minors. It does not mean that the exercise of the discretion is totally inoperative until the Court records its finding. In such a case it seems to me that the proper way of describing the situation is that the exercise of the option on behalf of the minor effects a severance conditional on the Court finding that it was for the benefit of the minor.
4. Ananthakrishna Ayyar, J. in the same case after referring to the observation of the learned Judges in Chelimi Chetti v. Subbanna AIR 1918 Mad 379, that a member of a joint family who exercises his discretion to separate must be of an age capable of exercising discretion in law observes:
I think they have not paid due regard to the circumstances already mentioned by me, with reference to such a discretion (volition) of a minor being exercised on the minor's behalf by the minor's mother or possibly by other natural guardians of the minor, when partition is effected outside Court between the members of a joint Hindu family. If such a thing could be done on behalf of the minor by his mother, etc., outside Court when partition is effected by private arrangement, I do not see sufficient reason for holding that such a thing could not be done in a proper case on behalf of the minor when a suit for partition on behalf of the minor becomes necessary.... Neither the exercise of such discretion, nor the institution of the suit, nor both combined, could bring about severance in status of the minor, unless the Court was satisfied that, having regard to the circumstances, partition was to be for the benefit of the minor. But when the Court comes to such a conclusion it would seem to follow that severance in status should be deemed to have taken place, at least on the institution of the suit. I say at least, because, logically, it would seem to follow in a proper case that the severance should be deemed to have taken place when the discretion or volition was exercised on behalf of the minor and the necessary communications made to the other co-parceners prior to the institution of the suit.
5. Cornish, J. also observes:
In the case of a minor the assertion by suit of his right to separate is, as we have seen, an inchoate right until perfected by a decree of the Court. But whether the plaintiff be an adult or a minor there is no distinction as regards the date from which divided status begins.
6. This decision overrules the view entertained in some cases that until the Court chooses to pass a decree the minor continues to be a member of the undivided family with the result that no severance in status is effected and the guardian has no power to exercise volition indicating a desire for separation on behalf of the minor, and if the minor dies before the decree the suit abates: vide Chelimi Chetti v. Subbanna AIR 1918 Mad 379, the view of Reilly, J. in the order of reference to the Full Bench, the view of Devadoss, J. in Krishnaswami Thevan v. Pulukuruppa Thevan AIR 1925 Mad 717 and the view of Ramesam, J. in Rama Rao v. Hanumantha Rao AIR 1930 Mad 326. Some of those cases also express the view that though the minor continues to be a member of the family, yet when once the Court passes a decree severance takes place from the date of the plaint. But if the guardian has no power to act and exercise the volition on behalf of the minor it seems to me that the theory of retrospective severance in status from the date of plaint is unsound and does not accord with strict logic. The ratio decidendi of the Full Bench on the other hand is intelligible; the exercise of the option by the guardian does effect a severance but the severance so to speak remains in a state of suspended animation till the Court ratifies the act; the Court takes upon itself the task of deciding that which the minor if he were an adult would have done himself, namely, whether it is beneficial or not to become separate; it is not a fresh expression of volition by the Court; the volition was already expressed by the guardian on behalf of the minor; the Court puts the seal of approval on it in the place of the minor and for him. It is open to the minor on attaining majority to elect to abandon or continue the suit. If he elects to continue, he adopts the act of the guardian and puts his own imprimatur on it and the Court is no longer called upon to pronounce its opinion on it; the minor becomes separated from the date of plaint. And if he elects to abandon the suit the minor continues to be an undivided member of the family and he must be deemed to have revoked the intention to separate. This is in accordance with the law as declared by the Privy Council in regard to division of status in the case of an adult co-parcener. It is the admitted right of every co-parcener to demand a partition of his own share. The severance is a matter of individual decision. The law in regard to an adult co-parcener is thus laid down in the latest pronouncement of their Lordships of the Judicial Committee in Babu Ramprasad Chowdhary v. Babuyee Radhika Devi, P.C.A. No. 102 of 1933:
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 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.
7. The question has often arisen whether the institution of a suit for partition is evidence of an act giving such a clear intimation of the fixed intention to separate. The Privy Council thus answered it in Palaniammal v. Muthu Venkatachela Moniagar .
The fact that any member of a joint family has separated himself from his co-parceners may be proved by his suing for a 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.
8. The expression 'if nothing else is proved' is significant. Their Lordships point out that a suit may be withdrawn with the result that no severance of the joint status may result, but at the same time indicate that even if it is withdrawn would, unless explained, afford evidence that an intention to separate had been entertained. Thus the filing of a suit is prima facie evidence of the fixed intention to become separate and thus operates as a severance if nothing else is shown to the contrary. It is open to a co-parcener to revoke his intention, the law thus giving him loaus panitentia which can be availed of till something is done which might render it difficult even for him to do so, such as the acceptance of his intimation by the other members of the family. Therefore till a decree is passed the severance attempted may be put an end to and the severance brought about continues and enures for the benefit of the co-parcener and his legal representatives. If this is the true position even in the case of an adult co-parcener, there is nothing illogical in the view that the institution of a suit by a guardian does operate as a severance of status unless the minor on attaining majority declines to adopt it or the Court refuses to sanction it. Therefore, the plaintiff in this case having elected to continue the suit became a divided member from the date of plaint, and he will be entitled to one-third share in all the properties in which it has been declared he is entitled to a share. The decree of the lower Court in this behalf must be accordingly modified.
9. The plaintiff impeaches the various alienations effected by defendant 1 or by defendants 1 and 3 in the suit on the ground that they were effected in circumstances which would not be binding on him as a member of the joint family. In regard to item 27 it has been found that the sale was not for a legal necessity but the plaintiff was refused the relief because the date of the alienation was 7th January 1908, and the plaintiff was born seven months thereafter on 4th August 1908. As pointed out in Sabhapathi v. Somasundaram, (1893) 16 Mad 76:
A son conceived is equal to a son born; an alienation to a bona fide purchaser for value is liable to be set aside to the extent of the son's share, by a son who was in his mother's womb at the time of the alienation,
and under Hindu law membership with the family is considered as commencing: from the date of the conception. No doubt in Sri Datta Venkatasubba Raju Garu v. Gattem Venkatarayudu AIR 1915 Mad 52 a Division Bench of this High Court observed, though Under Section 112, Evidence Act, a child is presumed to be legitimate if born within 280 days after possibility of access, there is no presumption that it was conceived 280 days before its birth, and it is incumbent upon the person attacking the alienation to prove by clear and satisfactory evidence that the child was conceived before the date of alienation. But for testing the validity of a transaction the principle to be applied is that the normal course of human events took place. Taylor in his Medical Jurisprudence, Vol. 2, observes:
The question now to be considered in reference to English practice is, what is the earliest period at which a child can be born living, and with a capacity to live after its birth and attain majority? It is universally admitted that children born at the seventh month of gestation are capable of living, although they are more delicate and in general require greater care and attention to preserve them, than children born at the ninth month. The chances are, however, very much against their surviving. It was the opinion of William Hunter, and it is one in which most modern authorities concur, that few children born before seven calendar months (or 210 days) are capable of living to manhood. They may be born alive at any period between the sixth and seventh months or even in some instances, earlier than the sixth; but this is rare, and, if born living, they commonly die soon after birth.
10. It is not shown that the Indian practice is different. Hence one should presume that a living child should have been conceived at least 210 days before its birth. The plaintiff in this case having been admittedly born within 209 days of the alienation the plaintiff must be deemed to have discharged the onus which Sri Datta Venkatasubba Raju Garu v. Gattem Venkatarayudu AIR 1915 Mad 52 lays down, and in my opinion the burden is shifted on to the alienee to prove that he must have been conceived later. In Rangasayi v. Nagarathnaruma, AIR 1933 Mad 890 and Ranganatha Reddi v. Ramaswami Mudali AIR 1935 Mad 839, a child born within 210 days of the alienation was presumed to be en ventre sa mere. I am therefore of opinion that the alienation of portion of item 27 covered by Ex. 28(a) is not binding on the plaintiff and must be set aside. The next alienation impeached is of item 48. It is covered. by Ex. 34, a sale deed dated 30th August 1908. The sale purports to be for Rupees 1,500 and the said sum is alleged to have been paid thus:
We have received the consideration at the time of the sale from one Avvaru Brahmudu alias Venkatakrishniah resident of Ponnur whom you have caused to pay.
11. The vendee gave evidence as D.W. 16 to the effect that the sum of Rs. 1,500 was borrowed for the purpose of discharging a debt due to Avvaru Brahmudu. In spite of discrepancy between the recital in the sale deed and the actual evidence both the lower Courts believed the evidence of D.W. 16 and confirmed the sale. Reading his evidence it appears to me that the purpose of the sale was to discharge the debt due to Venkatakrishniah. No doubt in regard to the actual payment there is some amount of discrepancy, but looking at the evidence as a whole the lower Courts have acted rightly in accepting it as it does not conflict with the purpose recited in the sale deed. I accept the finding of the lower Courts in regard to this transaction. The next alienation impeached is as regards item 50. It is covered by Ex. 14, a sale deed dated 20th April 1913, for Rs. 700. The sale was for the purpose of discharging two decree debts against defendant 1 being O.S. Nos. 921 and 923 of 1913 on the file of the District Munsif's Court of Bapatla. The sale deed was attested by both the decree-holders. The sale being thus for antecedent debts would be binding on the plaintiff. But it is argued that beyond the recitals in the sale deed, no evidence was adduced and the lower Courts went wrong in giving a decree in favour of the alienee on the strength of the mere recitals in the sale deed. The existence of decree debts was not disputed and D.W. 1 gave evidence to the effect that there were such decree debts. The vendee in this case was dead and defendant 1 was ex parte. As laid down by their Lordships of the Privy Council in Hunooman Pershaud Pandey v. Mt. Babooee Muudraj Koonweree (1854) 6 MIA 393:
The representation made by a manager accompanying the loan as part of res gestae would be evidence against the heir.
12. Therefore the recital that the sale deed was in discharge of decree debts would be prima facie evidence of a representation made by defendant 1 at the time of the transaction. As actual proof of the necessity is not necessary for the validity of an alienation and reasonable belief in the existence of necessity would be enough, one can presume, having regard to the fact that the vendee is dead, the latter believed in the representation and took the sale. As stated by their Lordships of the Privy Council in Banga Chandra Dhur v. Jagat Kishore AIR 1916 PC 110:
The recital is clear evidence of the representation, and if the circumstances are such as to justify a reasonable belief that an enquiry would have confirmed its truth, then when proof of actual enquiry has become impossible, the recital coupled with such circumstances would be sufficient evidence to support the deed.
13. All that is necessary to prove in this case would be the fact of decree debts subsisting against the father at the time of alionation. The belief in the representation that money was needed for the discharge of such debts would be quite enough to justify the alienation. Proof of the existence of such debts having been given in this case the lower Courts were justified in confirming the sale. The next alienation attacked is of item 55. It appears from the evidence that this property came to defendant 1 by collateral succession and as the plaintiff would not get any interest by birth in the said property be would have no right to impeach the alienation. The decree of the lower Court in regard to this property must stand.
14. The last point argued by Mr. Kameswara Rao is in regard to item 10. His case is that the lower Court has not given a finding as to whether the property is joint family property or the self-acquired property of defendant 3. The District Munsif held that it was not joint family property and the plaintiff had no right to claim a share therein. The case of the plaintiff is that he and his father and his brothers were together entitled to two-thirds share in the properties in the suit and defendant 3 was entitled to one. third on the ground that originally the family consisted of two brothers, his father's father Rajayya and his brother Ramchandrayya, that Ramchandrayya adopted his father and died, that defendant 3's father Ramabrahmam was the son-in-law of Ramachandrayya and was living in the family and he was also entitled to a share therein, that till the date of his death defendant 3's father was in management of the property, that no partition had ever taken place and that the various alienations effected by his father and defendant 3 wore improper, that he was entitled to his legitimate share in all the properties in the suit including item 10.
15. The case of defendant 3 is that the alleged adoption was untrue, that long before the plaintiff was born there was a partition in the family in 1895 in and by which defendant 1 got one-third share, defendant 3's father got another share and one Ponnamma, the widow of one Viswaanatham (the brother of defendant 1) got a third share as representing the share of Viswanatham, that ever since the division the three sharers and their reprasentatives have been in continuous enjoyment and possession thereof, that item 10 among other properties is the property of defendant 3's family. Both the lower Courts have found in favour of the division in 1895 alleged by the defendants. They also further found that defendant 3's father was not the manager after the division. It is no doubt true that no finding in regard to item 10 has been given by the lower appellate Court, but the evidence on this point has been placed before me, namely, the evidence of D.W. 2 and D.W. 1. I have gone through this evidence and I do not think that the plaintiff has made out his case in regard thereto. Though no doubt the presumption is that in the case of a family which is undivided every item of property in the possession of a member may be presumed to be joint family property capable of division, yet where the division has already taken place as in this case the said presumption cannot apply. Further when it is also found that the allegation that defendant 3's father acted as manager is not true, the plaintiff must have affirmatively proved that the said item was joint family property before the division, was not divided at the partition in 1895, and continued to be in joint possession upto the date of suit. It was thus incumbent upon him to prove both title and possession of his family within 12 years before the suit and as the evidence does not establish this the plaintiff's case in regard to this item' must also fail.
16. In the result the decree of the lower Court must be modified by awarding the plaintiff one-third share instead of one-fourth in all the items which the lower Court has declared the plaintiff to be entitled to including item 27 allowed by me herein. In adjusting the equities between the parties it would be desirable that the Court should allot to defendant 1's share the various items in respect whereof it has been held the alienations effected by him were held to be not binding on the plaintiff. Except with regard to the modifications above mentioned the second appeal fails and is dismissed. I direct each party to bear his own costs of this appeal. Leave refused.