1. This appeal arises out of two suits for partition of a Malabar tarwad which were brought respectively by the karnavan of the tarwad and the senior anandravan.
2. The appellants were the 46th to 55th and the 65th defendants in O.S. No. 28 of 1942 and defendants 19 to 28 and the 65th defendant in O.S. No. 37 of 1943.
3. The question to be decided can be shortly stated. The 65th defendant, who belongs to the tavazhi of defendants 46 to 55, was born during the pendency of the suit. It is admitted, however, that the date of her conception was subsequent to the date of the plaint but prior to the date on which the written statements of the several defendants were filed in which they expressed their desire for severance of status. If, therefore, the severance of status of defendants 46 to 55 dates from the date of the plaint, the 65th defendant who was not conceived by that date, would not be entitled to a share. On the other hand, if the dates of severance are the dates on which the written statements were filed she will be entitled to a share. The learned Subordinate Judge held that the date of the severance of status among the several defendants was the date of plaint. He quoted no autho-rity in support of his finding and the reason given by him for choosing the date of plaint rather than the date on which the expression of the desire for severance was made by the several defendants was merely a convenience. He thought that it would lead to much inconvenience if the several defendants had to be regarded as having severed their status on different dates. In our opinion mere convenience cannot be accepted as the test. The plaint is taken as the date on which a plaintiff who seeks partition severs his status because on the date when lie files the plaint he expresses his unequivocal intention of severing his status. In a suit for partition however unless it is by the father of a Hindu joint family, the mere expression of his intention to sever his status by the plaintiff in his plaint does not carry with it the severance of the other members of the family. If they have not previously expressed a desire for severance of status their status will not be severed unless by their written statements they, in their turn, express their desire for severance. It follows from this that the date on which they severed their status must be date on which they expressed their unequivocal intention of doing so, that is, the date on which they filed their written statements. We have not been referred to any reported decision on this question but the view we have expressed was taken by Somayya, J., in his judgment in S.A. No. 275 of 1939, which has not been reported. In our opinion, therefore, the 65th defendant was conceived before the defendants became divided inter se. She was, consequently, entitled to her share and the decree of the lower Court will be modified so as to give her a 1/66th share. The appeal is allowed.
4. A memorandum of cross-objections has been filed by the karnavah who was the plaintiff in O.S. No. 28 of 1942 and the first defendant in O.S. No. 37 of 1943. The objection is to an amendment allowed by the learned Subordinate Judge to the plaint and to an order made by him which was consequential on the amendment. In O.S. No. 37 of 1943, the suit in which the karnavan was the first defendant, the plaintiff had prayed for partition and a direction to the first defendant, the karnavan, to account. A question was raised in respect of the prayer for an account in regard to the proper Court-fee payable; and the plaintiff in that suit then prayed for an amendment by which the prayer for a general account should be deleted and there should be substituted for it a prayer for the recovery from the first defendant of a sum of Rs. 10,000 which it was alleged, he had collected from the tarwad but had kept with him. The learned Subordinate Judge did not try the issue which arose out of this claim to a specific sum of Rs. 10,000 but instead, apparently with the consent of all the parties, gave a direction for the sale of the sum of Rs. 10,000 as a disputed item, leaving it to the purchaser to file a suit against the first defendant if he was so advised. The disputed item was purchased by the plaintiff in O.S. No. 37 of 1943 for a sum of Rs. 755, and he has brought a suit for recovery of the whole sum of Rs. 10,000 from the first defendant. We are of opinion that the Subordinate Judge should not have adopted the course of selling the disputed item. But as it has been sold and a suit on which Court-fee has been paid has been filed in pursuance of the sale as directed by the Subordinate judge, we are not disposed to set aside the direction which he has made merely on the ground that he would have done better to have tried the question whether the plaintiff was entitled to recover this sum of Rs. 10,000 from the first defendant in the partition suit itself. It is argued, however, for the first defendant, that the amendment itself should not have been allowed as it introduced a new cause of action and that in any case the directions given by the learned Subordinate Judge amount in fact merely to a direction that the first defendant is liable to account whereas an account cannot be called for from the karnavan of a tarwad. In our opinion the substitution of the prayer for the recovery of a specific sum of Rs. 10,000 for the general prayer for an account introduces no new cause of action. It is a prayer which arises naturally out of a suit for partition. Nor do we think that there is any substance in the criticism that the new prayer is merely the. old prayer for a general account in a different form. The karnavan of a tawad can be made accountable for a specific act of misappropriation and what is claimed by the amended prayer is that he has kept in his hand a sum of Rs. 10,000 which should have been utilised for tarwad purposes. We agree, however, that the learned Subordinate Judge has made some observations in the course of his judgment which might indicate that the scope of the suit arising out of the purchase of the disputed item may be wider than the mere recovery of a specific sum of Rs. 10,000 from the first defendant. We would make it clear, therefore, that the suit can only relate to the recovery of the specific sum of Rs. 10,000. It is stated for the plaintiff that a list has been filed in the lower court in the suit regarding the disputed item showing the details of the alleged misappropriation. If, however, in fact, the details in respect of the alleged misappropriation have not been given we direct that they should be given before the trial of the suit is begun.
5. The appeal is therefore allowed. The appellants will get their costs from the estate. As regards the memorandum of cross-objections the parties will pay their own costs.