1. The parties to the suit belong to a family of Arbhakas and the history of: the complications giving rise to the present suit dates back to the year 1906. It appears that, in 1906, there were alive the second defendant's two uncles, the son of one of whom is first defendant; the other one having died childless. At that time the family considered themselves aggrieved by the behaviour of the present second defendant, and an arrangement was made by which he granted a release of all his interests in the family property by a document which is Exhibit A in the case. This document, Exhibit A, has been considered by this Court in its judgment remanding the case, and its effect is described as being that 'the second defendant relinquished his interest in the family property by the document.' It is common ground that the effect of this relinquishment was to remove him from the joint family which thereafter consisted of his son and the other members of his family. It is to be noted too, that in Exhibit A itself the second defendant said that when his uncles effected a division with his, second defendant's, minor son this deed would not affect the minor's equal share.
2. The next thing that happened was that in 1910 this document, Exhibit A, was absolutely ignored and a partition was made between the second defendant and the first defendant, the son of one of the uncles, the other having died issueless. In that partition the minor son was completely ignored, the second defendant not even purporting to be acting on his (minor's) behalf. It is this document, Exhibit I, which was relied on in the earlier stages of the suit. But with regard to that the High Court says as follows: 'In consequence of the prior document, Exhibit A, the son, the plaintiff, is not bound by the partition made between the first and second defendants under Exhibit I.' It is conceded also that the basis of this decision was that as Exhibit A was binding and the second defendant passed out of the family, he had no right to partition under Exhibit I. The High Court then directed the lower Appellate Court to determine certain issues as to certain specific properties and pass a preliminary decree for partition of what properties should be found liable to partition with an account of the debts and liabilities properly payable out of the family property.
3. The lower Appellate Court has found that Exhibit I having gone the property in the lands of the first defendant is family property in which the plaintiff, minor, is entitled to a share. The first defendant now seeks to put forward a case which he has never put forward before, that even if Exhibit I did not operate as a partition he can claim a partition at or about the date of Exhibit I and the way he puts it is this: that as Exhibit I indicates an intention by the first defendant to separate himself from the family, the Court must find a valid partition between him and the plaintiff as from that date or somewhere about the same date. He further contends that the proceedings leading up to Exhibit I were notice to the second defendant, the father of the plaintiff. He relies of course, on the decision of the Privy Council, in Suraj Narain v. Iqbal Narain 18 Ind. Cas. 30 as to the right of any member of a family to separate himself from the family by giving a notice to the other members. He further relies on the case in Kamepalli Ayilamma v. Mannem Venkataswamy 43 IND. CAS. 130 which lays down that notice can be given even to a minor so as to bind the minor, the notice being, properly given to the person who would, as soon as the partition is effected, become the natural guardian, and he contends that that person is the second defendant. It seems to me that there are at least two answers to this contention. The first is that it re-opens the case and goes into a matter which should properly have been agitated in the early stages of the case and should have been brought before this Court on the last occasion. In my opinion, it is not open to the first defendant to shift his ground now that it has been found that Exhibit I on which he relied for his partition is not binding on him. If he wished to set up that, whether there was a valid partition between the first defendant and tie second defendant in 1910 by virtue of Exhibit I or not the proceedings there constituted a valid partition between him and the minor, if Exhibit I was not binding, he should have set that up in the early stages of the case and it should have been made the subject of an issue and been decided then. The next answer is this, that it is not open to a Court to speculate. Admittedly the facts which were in the mind of the first defendant when he became a party to Exhibit I are not the true facts as to the relation of the parties one to the other at the time. They thought that the release deed was ineffectual and that the second defendant was entitled to a shale, and it was on that belief that the first defendant entered into this transaction, Exhibit I, as he himself admits, because he was displeased with the behaviour of the second defendant. As already stated Exhibit: I did not represent the true relation of the members of the family, and, in my opinion, it is not open to us to speculate as to what he would have done if he had known that he had already got rid of this second defendant whose behaviour he disapproved. He might very well have thought that it was his duty or possibly to his advantage to have remained the managing member of hte family consisting of himself and the minor. We cannot act on a supposition and this seems to me to be another sufficient answer to the case as now set up.
4. There is this third answer which is that this decoration must be unequivocal. It must be couched in such a language, or the behaviour must be such that the Court can draw no other inference from the circumstance than that the party did desire to separate himself from one whom it is now alleged that he did not separate. I cannot say that we can find an unequivocal declaration in Exhibit I or in the circumstance of the life which was led by these parties afterwards. It seems to me that where so important a fact as separation of a joint Hindu family is to be established by declarations we should be careful to adopt the very guarded language of the Privy Council as to the position being shown to be absolutely Unequivocal before we allow such changes to be made by letters or statements of that kind. For these reasons I am satisfied that this 'Court cannot now declare that there was any partition between the first defendant and the plaintiff at or about the year 1910. The result is that the property remained joint family property.
5. The only question that remains, is with reference to certain items of property. The first of the porperties in dispute which appears to have been acquired was the item No. 23 which together with eight days pujai moral is alleged to have descended to the first defendant from, his father's maternal grand father. The fact of this descent has been distinctly found by the lower Appellate Court and we cannot interfere with that finding. The Judge has considered this to be co-parcenary property on the authority of the 'decision in Venkayyamma Garu v. Venkutaramanayyamma Bahadur Garu 25 M. 678 . It 'appears however, from closer examination that Venkayyamma Guru v. Venkataramahayyamma Bahadur Garu 25 M. 678 does not cover the case exactly for that was a case in which at the time the succession opened the claimants were all maternal grand-children. In this case at the time the property devolved by the death of the mother, the first defendant's father alone was alive, the second defendant's father being dead and So the members of the family claiming were the second defendant and the first defendant's father. That being so it is contended on the authority of Vythinatha. Ayyar v. Yeggia Narayana Ayyar 27 M. 382 AT P. 385 that the great-grand child does not share the maternal grand-father's property and that the property only devolved on the first defendant's father, the second defendant taking no interest in it. The basis of that proposition in Vythinatha Ayyar v. Yeggia Narayana Ayyar 27 M. 382 is this, 'the grandson of an appointed daughter under the old law or of a daughter under the modern law is not regarded as equal to a son's son. In this view, the ordinary rule of Hindu law would prevail and the nearer grandson would exclude the remote grandson.' That is the ordinary rule under the Hindu Law which was laid down in Venkayyamma Garu v. Venkataramnayyamma. Bahadur Garu 25 M. 678 and Mr. Anantakrishna Iyer for the respondents does not contest it. Accepting, therefore, the finding that eight-days pujaimorai and item No. 23 are maternal grand father's property we must hold that the plaintiff is not entitled to any share in that, it having descended to the first defendant's father alone.
6. Then there is another eight days mirasi pujari right which appears to have been purchased in the year 1912. This would presumably be joint family property because at the time the joint family existed, and it would lie on the first defendant to show that it was purchased out of his self-acquired property and that, therefore, the plaintiff was not entitled to a share. There is no suggestion of any such thing here, and we must hold that eight 'days mirasi pujari right is joint family property subject to partition.
7. There is another small item No. 13 in the Schedule to Exhibit I which is item No. 14 in the plaint. With regard to this there is very little evidence at all. The lower Appellate Court had said that it is included in Exhibit I which amounts to an admission that whether it was ancestral property originally or not, it has been treated as ancestral property. We think that in the absence of any other evidence this indication must be accepted and, therefore, this item No. 24 will be treated as joint family property.
8. The only other question argued was as to the sum of money which is alleged to have been spent on item No. 23. This question will hot arise owing to the finding that this item NO. 23, descended from the maternal grandfather and is, therefore, not partible. The preliminary decree will be modified in accordance with the above directions. Each party will bear their own costs.