1. This appeal arises out of a suit for partition, O.S. No. 73 of 1934, filed on behalf of two minor plaintiffs who were brothers by their maternal grandfather. The father of the plaintiffs is defendant 4. When the suit was filed a step-brother of the plaintiffs was in the womb. After his birth he was impleaded as defendant 11 but died before the preliminary decree was passed. It is common ground that the share of defendant 4 and his sons in the family property is one-third. In its preliminary decree the first Court declared that the plaintiffs were entitled to half of this one-third, and that defendant 4 was entitled to the other half, one-fourth in his own right, and one-fourth by inheritance from his son defendant 11. Plaintiffs appealed. While the appeal was pending plaintiff 1 died. It was held by the appellate Court that his share fell to his father defendant 4, so that in the appellate decree plaintiff 2 is declared entitled to one-fourth, of one-third and defendant 4 entitled to the remaining three-fourth of that one-third. Against that decree plaintiff 2 has preferred this Second appeal. In the appeal memorandum he contends:
(i) that defendant 11 was never entitled to any share, and
(ii) that plaintiff's share has passed not to defendant 4 but to himself.
At the hearing of the appeal the first of these contentions was not seriously pressed. I proceed accordingly to consider the second.
2. The decision of this question depends upon whether the action of the 'two plaintiffs in filing the suit has brought about their separation from each other. If it has, defendant 4 certainly succeeds to plaintiff l's share; if it has not, plaintiff l's share falls to plaintiff 2 by survivorship.
3. It is clear from the authorities that the joint filing of a plaint by two plaintiffs cannot automatically and invariably bring about their separation inter se. The question depends upon their wishes or intentions. When one coparcener separates from the others, there is no presumption that the latter remain united. See Balalux v. Rukhmabai On the other hand there is equally no presumption that they are separated. As is laid down in Palani Ammal V. Muthuvenkatachala Monigar (also a decision of the Privy Council):
A member of a joint family can separate himself from the other members... and the remaining coparceners, without any special agreement amongst themselves may continue to be coparceners....
The decision whether the other members remain joint or become divided must therefore depend upon their own actions.
4. What are the actions of the plaintiffs in the present case? Of course they do nothing of their own initiative. Their grandfather acts for them. Did he intend that his grandson should divide from each other, or divide only from the other members of the family? The only evidence comes from the plaint itself. It is argued for the defendant 4 that inasmuch as the plaint does not state specifically that the plaintiffs are to remain joint it must be presumed that they wish to be divided inter 80. I do not see why I should presume so improbable an intention. What conceivable reason could there be in ordinary circumstances, for two boys of 11 and 9 to divide from each other? A reading of the plaint can leave no doubt in any one's mind that the two brothers are so to speak, treated as a unit, and what is asked for is their 'share' in the singular. Nor does the original preliminary decree purport to give them any separate shares. It seems to me perfectly clear that the two plaintiffs, speaking through their next friend, did not intend to Separate from each other.
5. I need only refer briefly in conclusion to Rama Rao v. Hanumantha Rao : AIR1930Mad326 upon which the lower appellate Court relies. That was a case in which two brothers, of whom one was a major, and the other a minor, represented by the first as his next friend, filed a suit for partition. It was held in that case that upon the death of the 2nd plaintiff his share did not devolve upon the 1st plaintiff. The reason for that decision, however, was that during the interval between the filing of the plaint and the decision of the Court to allow partition as desirable in the interests of the minor plaintiff, the major plaintiff was already divided, and the minor plaintiff was not. It was therefore impossible for the major plaintiff to contend during that interval that he and his brother were still undivided. 'Whatever may be said of that reasoning, and it seems to me, with the very greatest respect, open to some question, it cannot possibly in my opinion We applied to the facts of the present case where both plaintiffs were minors.
6. In the result I must allow this appeal in part, by enlarging the plaintiff 2's share to half of one- third, and reducing the share of defendant 4 to the other half. Bach party to bear his own costs.
7. (Leave refused).