John Wallis, C.J.
1. The plaintiff in this suit, as the illegitimate son by a dancing woman of the late Ramasawmi Chettiar, a Nattukottai Chetty, seeks to recover a one-third share of the joint family properties, as against the legitimate son, the 1st defendant, who would otherwise take the whole by survivorship. The Subordinate Judge found that the paternity of the plaintiff was not proved and dismissed the suit. We are unable to agree with this conclusion.
2. The deceased, as found by the Subordinate Judge, appears to have become acquainted with the plaintiff's mother in 1900, when she had for some years been carrying on the profession of a dancing girl and a prostitute. He set her up in a house at Srirangam, near Trichinopoly, where he carried on business, and lived with her there for some years. Shortly before the plaintiff's birth, early in 1903, he was imprisoned for fraud, and the correspondence shows that he regarded the child about to be born as his and that subsequently he recognised it as such. The correspondence also shows that his legitimate son, the 1st defendant, used to live in the house with his approval. In 1905, when the plaintiff was a little over two years old, the deceased refused any longer to maintain him and his mother, who petitioned the Assistant 1st Class Magistrate on his behalf for maintenance in Exhibit III. The order of the Assistant 1st Class Magistrate, which was rejected by the Subordinate Judge, but admitted by us as evidence of the conduct of the deceased with reference to this claim, shows he made no serious attempt to contest the petition, or show grounds for doubting his paternity, and in these circumstances very little weight attaches to the fresh evidence as to the conduct of the plaintiff's mother prior to his birth, which has now been put forward for the first time. Further, that evidence in itself is of a very worthless kind, and is more than counterbalanced by the letters of the deceased, which show that he was at one time much attached to the plaintiff and recognised him as his son. The question then arises whether the plaintiff, as the son of the deceased by a woman of the position and antecedents of his mother, is entitled to claim a share of the joint family property as the illegitimate son of the deceased. It must now be taken as settled that the illegitimate children of the higher castes are not entitled to inherit Bhaiya Sher Bahadur v. Bhaiya Ganga Bakhsh Singh 22 Ind. Cas. 293 : 18 C.W.N. 401 : 12 A.L.J. 188 : 16 Bom. L.R. 306 : (1914) M.W.N. 184 : 15 M.L.T. 169 : 26 M.L.J. 291 but it is otherwise with Sudras. All the Courts recognise that the son of a Sudra by a dasi is entitled to inherit. Manu (IX, 179) and Yajnavalkya (II, 133) mention not only a dasi but also the wife of a dasa or slave, and the Dayabhaga adds 'or other unmarried woman' which, as pointed out in Padala Krishna Rao v. Padala Kumarajamma 15 Ind. Cas. 340 may merely mean 'not married to the father of the child.' As pointed out in Krishnayyan v. Muttusami 7 M.k 407 the words 'or other unmarried woman' do not occur in the Mitakshara or other commentators of the South. The Mitakshara merely speaks of a son begotten by a Sudra on a dasi. In a recent case in Chatturbhuj Patnaik v. Krishna Chandra Patnaik 17 Ind. Cas. 276 Mookerjee and Beachcroft, JJ., have given good reasons for doubting the correctness of the Calcutta decision that under the Dayabhaga this must be read as meaning a woman in the position of a slave,' and have refused to follow these decisions in a case arising under the Mitakshara, agreeing in this with our own and the other High Courts. In this Court it is also well settled that the son must be born of a continuous concubine, and also that he must not be the issue of a connection that is incestuous or adulterous Krishtamma v. Papa 4 M.H.C.R. 234 though the latter condition is said to be disregarded in Bombay Rahi v. Govinda valad Teja 1 B.k 97. The question then is, are there any further restrictions? In Krishnayyan v. Muttusami 7 M.k 407 it is said that the reason of the rule is that the dasi's son succeeded not as a slave, but as the son of one who was in the position of a substitute for a wife though not legally married. It is not clear that this meant more than that she must have been a continuous concubine, but it is now suggested, very largely on the authority of this passage, that she must have been qualified to marry the father. I do not think the learned Judges who decided Krishnayyan v. Muttusami 7 M. k 407intended to lay down any such rule, as one of them, Muthusawmi Aiyar, J., in a subsequent case, Brindavana v. Radhamani 12 M.k 72 expressly reserved the question whether a dancing girl could not give up her profession and be the mother of illegitimate children within the meaning of the Mitakshara Law. In Karuppannan Chetti v. Bulokam Chetti 23 M.k 16, to which Subrahmania Aiyar, J., was a party, it was held that the sons of a woman continuously kept by the father as a concubine whose connection was neither adulterous nor incestuous were in this Presidency entitled to inherit, but in Annayyan v. Chinnan 5 Ind. Cas. 84, White, C.J., and Benson, J., held that the son of a child widow, who had lived with the father as his concubine, could not inherit. This ruling appears to have been based on the finding that re-marriage of widows was forbidden among Sudras of the class to which the father belonged, and that the father and mother had been out-casted by their community in consequence of their living together. In these circumstances the connection was treated as one in violation of or forbidden by the father's customary law. In Sundaram v. Meenakshi Achi 16 Ind. Cas. 787 it was held by Sankaran Nair and Ayling, JJ., that the son of a dancing girl who had formed her first connection with the father and lived with him ever since, was not entitled to inherit apparently on the ground that she had not severed her connection with the temple and so could not fulfil the duties of a wife, relying on the passage in Krishnayyan v. Muttusami 7 M. k 407 which I have already mentioned. In Meenakshi v. Muniandi Panikkan 25 Ind. Cas. 957where, however, the point did not arise for decision, my learned brother expressed the view that illegitimate children of Sudras were allowed to inherit because among them continuous concubinage was equivalent to marriage and in the judgment in the present case which I have had the advantage of reading, he has come to the conclusion that the plaintiff is not entitled to succeed because his mother in his opinion was not qualified to marry the plaintiff's father. The question is one of considerable importance and, as the authorities are not uniform, I think it would be better before deciding it to refer to a Full Bench the question whether in the circumstances set out above the plaintiff is entitled to share in the joint family property.
Seshagiri Aiyar, J.
3. This is a suit by the son of a woman belonging to the dancing girls' caste for a share in the property of one Ramasawmi Chettiar, who is alleged to have kept the plaintiff's mother as his concubine. There is an alternative claim for maintenance. The 1st defendant is the son of the deceased by his wedded wife, the 3rd defendant. The defendants denied that the plaintiff was born to Ramasawmi Chetty. The Subordinate Judge came to the conclusion that the plaintiff was not born to the deceased and dismissed the suit. In the view he had taken, it was not necessary to consider the question of maintenance. The plaintiff has appealed.
4. I am unable to agree with the Subordinate Judge regarding the plaintiff's paternity. It is in evidence that Ramasawmi Chetty carried on business as a banker at first in Trichinopoly. He subsequently took a mortgage of a house in Srirangam in November 1901 (Exhibit G). There can be no doubt that the plaintiff's next friend, the dancing girl, was living in this house along with her sister and her paramour. The oral evidence on this point is consistent and is strengthened by Exhibit E (dated 25th December 1902), which was a rent-deed executed to Ramasawmi Chetty's father by Subbu Singh, the paramour of the sister. The plaintiff was born in February 1903. Ramasawmi Chetty was then in jail, having been sentenced to six months' rigorous imprisonment for criminal breach of trust. He came out of the jail in May 1903. The evidence given in this case admits of no doubt that from about June 1900, till Ramasawmi was sent to jail, he kept this woman as his concubine and lived from November 1901 in the same house with her till his conviction. Evidence has been let in that others were in the habit of frequenting the house. This is denied by the plaintiff's witnesses. It is true that there is no presumption as in the case of a married woman that a child born during the period of concubinage is the paramour's. The status of the woman and the fact that others had access to her are factors which negative such a presumption. In this case, the woman was living in the same house with Ramasawmi and he seems to have felt no doubt that the child born in February 1903 was his. In Exhibit A-8, written after the release from jail to this woman, he says, 'You go as you please. I do not mind it. Support the thambi and hand him over to me. It is only for that, that I have written this letter.' It is conceded that thambi referred to in this letter is the plaintiff. In Exhibit A-6, he calls himself the husband of the woman. In Exhibit A-4 he calls her his abhimana stri. In Exhibit B-2, written from the jail, he makes enquiries as to whether the child was delivered and asks Subbu Singh to see that the woman lives a respectable life. These letters, coupled with the oral evidence in this case and the fact of their residing together in the same house, leave no room for doubt that Ramasawmi Chetty was the father of the plaintiff.
5. Before dealing with the question of law which arises in the case, I should like to point out that I see no reason to disbelieve the evidence which has been adduced to the effect that when this woman became the concubine of Ramasawmi, she was not a virgin. She was then, according to one account, 23 years of age, and according to another, 27 years. It was admitted that she was a native of Ariyalur and that she was dedicated as a dasi in a temple there. Women of this class soon fall into evil ways. Mr. Aiya Aiyar did not seriously argue that she had not known others before she became Ramasawmi's concubine. The evidence and the probabilities are against it. My conclusion is that she had been in the keeping of others before she came to Ramasawmi Chetty.
6. The point for decision is whether to a child born to a woman of the class and of the antecedents I have mentioned, the text of Yanjavalkya contained in the Mitakshara, Chapter 1, Section 12, applies. The sage says: 'Even a son begotten by a Sudra on a female slave may take a share by the father's choice.' (Stokes' Hindu Law Books, page 426.) Manu states the law in a slightly different way (Chapter IX, Section 179). The view of the Calcutta High Court in Narain Dhara v. Rakhal Gain 1 C.J. 23 W.R. 334 that the term dasi in Yajnavalkya's text means only a female slave has not been accepted in Madras. See Krishnayyan v. Muttusami 7 M.k 407and Brindavana v. Radhamani 12 M. k 72. On the other hand, the interpretation of the text by Jimutavahana that the concubine should be unmarried has been regarded as correctly expressing the meaning of the sage. A further limitation that the kept woman must have been a continuous concubine has been insisted upon. Datti Parisi Nayudu v. Datti Bangaru Nayudu 4 M.H.C.H. 204; Kuppa v. Singaravelu 8 M.k 325; Karuppannan Chetti v. Bulokam Chetti 23 M.k 16; Rahi v. Govinda valad Teja. 1 B.k 97 and Dalip v. Ganpat 8 A.k 387. The object of these restrictions has been to confine the special rule of inheritance within strict limits, in order that no encouragement beyond what is absolutely within the letter of the law may be afforded. Therefore, to enable an illegitimate son to lay claim to a share in his father's property, his mother must be a Sudra, must have been unmarried and must have been kept by the putative father as a continuous concubine. The question is, whether the plaintiff's next friend satisfies all these requirements. I have come to the conclusion that in two essential particulars she is outside this rule of law.
7. In the first place, a dancing girl is not a Sudra. Manu in Chapter VIII, Section 415, describes a dasa or servant thus: 'There are servants of seven sorts; one made captive under a standard or in battle, one maintained in consideration of service, one born of a female slave in the house, one sold, or given, or inherited from ancestors and one enslaved by way of punishment on his inability to pay a large fine.' Narada gives 15 sources from which a dasa can be drawn. It is not necessary to refer to them as Balambhatta points out that the 15 classes are really amplifications of Manu's seven classes. It need hardly be mentioned that a dasi (the feminine of dasa) should belong to one of these seven classes. Kulluka, Bhatta, in commenting upon Manu's text, points out that a dasi must belong to one of the seven classes. Reference may also be made to the well-known Dictionary, the 'Sabda-Kalpa Druma.' It its clear that a dancing girl does not come under any one of the seven classes. These seven classes constitute, with those born as such, the Sudra caste. The matter is made very clear by the commentary of (Chapter 24 of Acharadhyaya of the Mitakshara entitled Stri-Sangrahana Prakarana'). The text of Yajnavalkya prescribes varying degrees of punishment for men and women who go wrong. In Sloka, 272 the Rishi prescribes a different kind of punishment for a man cohabiting with a vesya or dancing girl, from that prescribed for one having connection with a dasi. In commenting upon the term dasi, Vijnaneswara, at the outset of his commentary upon Sloka 290, says: * * * * (Ukta-lakshanavarnastriyodasyah). (Caste women of the above description are slaves). The reference here is to the 14th Prakarana and to the four castes. He then says that prostitutes are common to all men. He is met by the objection that there is nothing in the Sastras to countenance the theory that certain women are common to all men. The objector further points out that such women should belong to one of the four castes. It is desirable to quote here the exact language used by the objector.'Again, by becoming a slave, a woman does not cease to be governed by her own personal law, for slavery deprives her of her independence and not of the law which otherwise governed her person. Nor are dancing girls common to all men, for beside the four castes and the caste resulting from the union of a male with a female of a lower caste, there is no separate caste in which women are common. If the dancing girls fall within those castes, they are, as already stated, not common. If, on the other hand, they belong to a class resulting from the union of males with females of higher castes, they are still further from being common. When, therefore, people have sexual intercourse with them, they are degraded for repeating a condemned act; and as a degraded (that is, declared an outcaste) person is ordained not to be associated with, dancing girls are not fit to be common to all people.' The answer given to these objections is very explicit. The commentator justifies his position that the dancing girl herself is not to be punished as in the case of others, because she commits no sin in following her profession. On the question, whether she belongs to one of the four castes, the answer is in these terms: 'What was said, therefore, that in the absence of any such separate caste, the dancing girls must belong to the caste system by the process of reasoning that, being human beings, they must, as Brahmins and others, belong to the caste system, is wrong, as the caste system does not cover the entire humanity, there being distinct classes, like the son born to a paramour while the husband is living and the widow's son. Hence dancing girls form a separate class which has been in existence from time immemorial, which has resulted from the union of men of superior or equal caste with them (dancing girls) and whose profession is prostitution, and as this class, like that of Brahmins and others, has been well known to people, it is but fit that it should be recognised. Nor is the popular conviction unsupported by authority. It is said in the Skanda Purana, 'There was a celestial damsel named Panchachuda and her progeny formed the fifth caste of dancing girls.' Therefore, not having the institution of marriage, they incur no sin in having sexual intercourse with men of superior or equal caste nor are they liable to punishment.'
8. I have made these long quotations from the commentary because the statement therein contained is clear and decisive of the question before us. Some commentaries give a different origin to the term vesya. It is not necessary to pursue the Subject further. My conclusion, therefore, is that a dancing girl does not belong to the Sudra caste.
9. There has been no direct decision on this point. In Brindavana v. Badhamani 12 M.k 72. Sir Arthur Collins and Mr. Justice Muthuswami Aiyar left it open whether dancing girls may not give up their profession and become mothers of illegitimate children within the meaning of the Mitakshara Law.' Mr. Justice Sankaran Nair in his judgment in Appeal No. 56 of 1908 considered it unnecessary to decide the point. In Chellammal v. Ranganatham Pillai 12 Ind. Cas. 247 the question whether a dancing girl can be a continuous concubine as described in the Mitakshara was not considered. Ananthaya v. Vishnu 17 M.k 160 was a case of maintenance. So also was the case decided by the Judicial Committee in Muttusawmy Jagavera Yettappa Naicker v. Vencataswara Yettaya, 12 M.I.A. 203 Mr. Aiya Aiyar contended that the term dasi has been interpreted by Professor Monier Williams and others to include a dancing girl. This is beside the point. These dancing girls have assumed in Southern India the appellation of dasis and devadasis. Consequently the compiler of the lexicon says that the term is also applicable to dancing girls. This will not assist us in finding out in what sense the Smriti writers used the term.
10. The second point which is equally fatal to the claim of the plaintiff for a share of the inheritance is that his mother was not an unmarried woman. It is true that she has not gone through a form of marriage with any particular individual. But as pointed out by Mr. Justice Sankaran Nair in Appeal No. 56 of 1908, the fact of her having been dedicated to service in a temple renders her unfit for married state. Whether we accept the theory that a woman dedicated in a temple is married to the deity or not, there can be no question that the object of the farce that is gone through is to ensure that her services shall be at the disposal of the temple authorities whenever required. As Sir T. Muthuswami Aiyar points out in Krishnayyan v. Muttusami 7 M.k 407 in order that the illegitimate offspring may claim a share, she must be 'a substitute for a wife.' Mr. Justice Sankaran Nair expresses the same opinion in the case I have already referred to. In a recent case in which I had to consider the rights of illegitimate children to inherit their mother's stridhanam, I expressed an opinion that the provision in the Mitakshara for illegitimate offspring contemplates that the continuous cohabitation must be equivalent to marriage. See Meenakshi v. Muniandi Panikkan 25 Ind. Cas. 957. I was not then aware of the pronouncement to the same effect by Sir T. Muthuswamy Aiyar and Sir C. Sankaran Nair. Mr. Justice Chandavarkar in Tara v. Krishna 31 B.k 495 had to consider whether a prostitute who leads a life of promiscuous intercourse can be said to be an unmarried woman. The learned Judge came to the conclusion that ouch a woman was neither a (kanya) (maiden), nor a (kulastri) (married woman). I entirely agree with this conclusion. In Mitakshara, Chapter I, Section 12, placitum 3, the author says that the illegitimate son of the three higher castes are not entitled to inheritance. See also Chuoturya Run Murdun Syn v. Sahub Purhulad Syn 7 M.I.A. 18 and Roshan Singh v. Balwant Singh 27 I.A. 51 : 4 C.W.N. 353 : 2 Bom. L.R. 529 : 7 Sar. P.C.J. 642. It has further been held that even in the case of Sudras, if the connection is adulterous or incestuous, the son of such a union cannot claim a share in the father's property Muttusamy Jagavira Yeltapa Naikar v. Venkatasubha Yettia 2 M.H.C.R. 293; Krishtamma v. Papa 4 M.H.C.R. 234 and The Vencatachella Chetty v. Parvatham 8 M.H.C.R. 134. The reason of these exclusions is that the woman with whom such intercourse is maintained cannot be a 'substitute for a wife.' Therefore, unless the woman who is kept as a concubine could have been legally married by the paramour, the son will not be entitled to a share, and a dancing girl, being outside the varnas, is not eligible for marriage to persons within the varnas. I. am aware that it is open to persons belonging to the dancing girls' caste to become married women. It is of constant occurrence in Southern India; but that is only among their own people. If she is once dedicated to a temple, she cannot be married even among her castemen. As Mr. Justice Sankaran Nair points out in Appeal No. 58 of 1908, a woman thus dedicated puts herself under the power of the temple authorities and is no longer a free agent; and she becomes a * * (sadharanastri) in the language of Vijnaneswara. Moreover, it would be preposterous to speak of such a woman as a kanya or an unmarried woman. In the present case, as I pointed out already, this woman had known other men before she became the concubine of Ramasawmi. She was not a kanya at the time. I am clearly of opinion that the term 'unmarried' cannot apply to a woman of such antecedents. It is necessary that the exceptional rule stated in the Mitakshara should be applied with great care and caution. The rule, tinder no circumstances, should be extended beyond what the letter of the text warrants. The interests of public morality and the changes which time has brought about have to be taken into account in applying the texts of Hindu Law. It is on that account that certain texts have been regarded as obsolete. Fortunately in this case the law as explained by Vijnaneswara and the conditions of the times both favour the non-applicability of Yajnavalkya's text to the class of women known as dancing girls. I have assumed throughout that Ramasawmi was a Sudra, as it was not contended before as that a Nattukottai' Chetty did not belong to that caste.
11. For the reasons given by me the claim of the plaintiff for a share in Ramasawmi's property is, in my opinion, unsustainable. He is undoubtedly entitled to maintenance. As the learned Chief Justice considers it desirable that the question arising for decision in this case should be referred to the decision of a Full Bench. I agree in the order proposed.
12. [The appeal was heard by the Full Bench on the question referred to.]
13. Mr. K.N. Aiya Aiyar, for the Appellant.--A dancing girl is governed by the Hindu Law. It is not necessary that she must be qualified to be a lawful wife. A dancing girl is of a caste higher than Sudra. There is no case which decides that she is of the Sudra caste. The words used in Mitakshara, Chapter I, Section 12, (the text which deals with the illegitimate son's right to inherit) are born to a, dasi by a Sudra.' See Muthusamy Jagavira Yettapa Naikar v. Venkatasubha Yettia 2 M.H.C.R. 293 and Muttusawmy Jagavera Yettappa Naicker v. Vencataswara Yettaya 12 M.I.A. 203. As to whether an illegitimate son of a Sudra by a woman beyond the pale of the Hindu Law is entitled to inherit, see Lingappa Goundan v. Esudasan 27 M.k 13. The word 'dasi' denotes a woman under exclusive concubinage.' In Muthusamy Jagavira Yettapa Naikar v. Venkatasubha Yettia 2 M.H.C.R. 293 the woman was the daughter of a dancing girl but did not follow the profession of a dancing girl. In Ananthaya v. Vishnu 17 M.k 160 an illegitimate son of a Brahmin by a dancing girl was held entitled to maintenance, the fact of the woman being a dancing girl being considered only in determining whether the connection was casual or continuous. As to whether a dancing girl can give up her profession and become a dasi, see Brindavana v. Radhamani 12 M.k 72.; Krishnayyan v. Muttusami 7 M.k 407 is against me as well as Sundaram v. Meenakshi Achi 16 Ind. Cas. 787 which follows it. Chellammal v. Ranganathuni Pillai 12 Ind. Cas. 247 : 34 M.k 277 was a case of a prostitute and yet the son by such a woman was held entitled to a share. Dasi includes a 'prostitute' Rahi v. Govinda valad Teja 1 B.k 97 J. See Dr. Jolly's Tagore Law Lectures (Partition and Inheritance), 1863, page 187 : Davavibhaga (Barnells' Translation), Introduction : Elbering on Inheritance (Gift), Articles 60. 71 and Chatturbhuj Patnaik v. Krishna Chandra Patnaik 17 Ind. Cas. 276. 'Unmarried' means 'unmarried to the man'. See Karuppannan Chetti v. Bulokan Chetti 23 M.k 16; Annayyan v. Chinnan 5 Ind. Cas. 84; Tara v. Krishna 31 B.k 495 ; Vencatachella Chetty v. Parvatham 8 M.H.C.R. 134; Muttusawmy. Jagavera Yettappa Naicker v. Vencataswara Yettaya 12 M.I.A. 203 : 11 W.R. 6and Padala Krishna Rao v. Padala Kumarajamma 15 Ind. Cas. 340.
14. Mr. B. Sitarama Rao, for the Respondent.--The word dasi according to Yajnavalkya and Mitakshara meant only a female slave.' The Sudras merely adopt Brahmanical forms of marriage. The dancing girls belong to the fifth caste mentioned in the Mitakshara, and not to the four castes. The Mitakshara differentiates between a family woman and a common woman. The former are still further divided into kanyas and married women. The texts dealing with this subject are Manu (Sacred Books of the East series), Chapter IX, verse 179; and Mitakshara, Chapter I, Section 12. The Mitakshara only mentions the son of a slave. It ought not to be extended to cases of sons of prostitutes. The term dasi in the text refers to a woman capable of marrying the man. Krishtamma v. Papa 4 M.H.C.R. 234. Dasi being a secondary wife must satisfy all the conditions of a legal wife. Except Chellammal v. Ranganatham Pillai 12 Ind. Cas. 247 the other cases are of women who were not dancing girls, though in some of them they were of that caste. The prohibition in regard to a dancing girl marrying is due to the fact that she is not a virgin, who alone can marry. Dahi Bai v. Soonderji Damji 9 Bom. L.R. 819. Consecration is an absolute bar to marriage. Ramamani Ammal v. Kulanthai Natchear 14 M.I.A. 346. The present is the case of a prostitute. Diyabhaga, Chapter V. Volume 14; Smriti Chandrika (Krishnaswamy Iyer's Translation), pages 63 and 64 : 3 Col. Dig. (Madras Edition), pages 317, 410. A dancing girl's son cannot inherit, though he may be entitled to maintenance. Annayyan v. Chinnan 20 M.L.J. 355.
15. After hearing arguments of Counsel etc., the Full Bench expressed the following
16. I have already attempted of summarise the decisions upon this subject in my order of reference and need not go over the ground again. The order of Seshagiri Aiyar, J., proceeds upon the ground that the illegitimate son of a Sudra is not entitled to inherit unless the mother was competent to marry the father, and he holds that the mother in this case was not competent on two grounds that she was not a Sudra and not an unmarried woman. After hearing the question further argued we think it is unnecessary in our opinion to consider what are the essentials of a marriage among Sudras, because we are not satisfied that this is the text to be applied. To satisfy the texts it must be shown that the mother is a dasi, not that she is qualified to become a wife. As regards her being an unmarried woman, the Dayabhaga no doubt mentions this, but this text has been interpreted as meaning 'not married to the father of the child' Vencatachella Chetty v. Pravatham 8 M.H.C.R. 134; Karuppannan Chetti v. Bulokam Chetti 23 M. k16; Annayyan v. Chinnan 5 Ind. Cas. 84; Padala Krishna Rao v. Padala Kumarajamma 15 Ind. Cas. 340 and this is how the passage was understood by Medatithi. However this may be, we think that the plaintiff's mother, who followed the profession of a dancing girl, was not a married woman. The only other question then is, was she a dasi? Dasi is the feminine of dasa, which according to MacDonnell's Vedic Index, Volume I, page 356, Volume II, page 388, at first meant an enemy and was afterwards applied to conquered enemies reduced to a servile condition. The word dam was long applied to this class, the term Sudra being introduced later, and even to this day dasa and dasi are in use in some parts of India as suffixes to Sudra names in the same way as Aiyar,' etc., in the case of Brahmin names.
17. Professor Jolly in the Tagore Lectures for 1883, at page 187, draws attention to the fact that Medatithi, who flourished before Vijnaneswara, understood the text as meaning the son of a Sudra by a woman neither married to him nor authorised to raise offspring (according to the custom of niyoga). Professor Jolly also refers to the fact that the term dasi was also understood by the commentators as meaning a prostitute, citing the Calcutta edition of the second part of the Mitakshara, where the term dasi, in a passage in Yajnavalkya is explained as meaning a lewd married woman or prostitute. He also alludes to the common use of the word in South India to denote the consecrated female dancers attaches to temples. In these circumstances it seems difficult to say that women of this class are not (last's within the meaning of the texts. We are not satisfied that the passage of the Mitakshara cited by Seshagiri Aiyar, J., is sufficient authority for holding dancing girls to form a separate caste, though this again does not appear to be very material, as it cannot be said that according to Hindu ideas unions of this kind are regarded more unfavourably than unions founded on the seduction of an unmarried Hindu Woman not belonging to this class. It has not been shown that, in practice, the offspring of such unions, which are very common, have been regarded as having less claim to inherit than the children of concubines who had not been dancing girls.
18. In Brindavana v. Radhamani 12 M.k 72 the learned Judges, in their observations at page 87, though they do not decide the point, were apparently inclined to hold that a dancing girl might become the mother of an illegitimate child within the meaning of the Mitakshara Law. The learned Judges who decided Sundaram v. Meenakshi Achi 16 Ind. Cas. 787 expressly reserved this point, and their decision may possibly be explained on the ground that a woman who continued to do service in the temple could not be regarded as an exclusive and continuous concubine. The limitation as to her being an exclusive and continuous concubine is not to be found in the texts and appears to have been imposed by the Courts as necessary to secure due evidence of the paternity, just as the further restriction that the connection must not have been incestuous or adulterous was imposed on general grounds of morality. The partial rights of succession which are conferred upon illegitimate children under Hindu Law may be matter for regret, but we should not, in my opinion, be justified in imposing for this reason fresh restrictions which are not shown to be supported by authority or in conformity with the practice of the community.
19. I agree and need only add a few words with reference to a case relied on by the respondent's Vakil, Sundaram v. Meenakshi Achi 16 Ind. Cas. 787, to the decision of which I was a party. The circumstances of that case, and in particular the fact that the plaintiff's mother, while in the keeping of his father, did not give up her profession as a dancing girl attached to the temple, made it difficult to say that the finding of the Original Court that she was not kept by him exclusively was wrong. Speaking for myself, this consideration strongly affected the decision of the case; and I do not think the judgment of my learned brother, Sankaran Nair, J., in which I concurred, should be treated as laying down any general principle of restriction of the right of inheritance of an illegitimate son of a Sudra.
Sadasiya Aiyar, J.
20. The learned Chief Justice in his referring order has summarised the rulings in all the important cases on the question of the right of the illegitimate son of a Sudra to claim a share in paternal property. I may state shortly that I respectfully adopt the opinion of Sir S. Subrahmania Iyer, J., in the case Karuppannan Chetti v. Bulokam Chetti 23 M.k 16 that the son of a Sudra woman continuously kept by a Sudra father is entitled to obtain a full share in the father's property at his father's choice during the father's lifetime and to obtain a half share with the legitimate sons of the father after the father's death if the connection between his father and his mother was neither adulterous nor incestuous. I might be permitted to state that that decision was given in second appeal in a suit which was decided by myself as District Munsif. I was inclined to hold in that case (decided so long ago as in 189o or 1897) that the son of a Sudra male born of a permanent female concubine of the Sudra caste is, strictly speaking, not an illegitimate son but a legitimate aurasa son born of a gandharva marriage. In the very recent case Meenakshi v. Muniandi Panikkan 25 Ind. Cas. 957, my learned brother, Seshagiri Aiyar, J., says: I am of opinion that this treatment' (that is, the favourable treatment of illegitimate sons of Sudras as regards right to share in paternal and ancestral property) was due to the idea that marriage among then (Sudras) was not so strictly formal and ceremonial as in the case of the higher classes. Continuous concubinage was regarded as equivalent to marriage although the children of this irregular union did not rank equally with those with whose mother there was a formal marriage.'
21. As regards the translation of the word 'dasi' as female slave in the text of Yajnavalkya as distinguished from an ordinary Sudra female, that translation has not been accepted by the Madras and Bombay High Courts and very rightly, if I may say so with respect. Dasa, according to Apte's Sanskrit Dictionary, has got also the following meanings: a servant in general, a Sudra, a man of the fourth caste, the caste-title of a Sudra. Dasi has got the meaning of a female servant.' The Sudra caste was formerly the servant caste. The members belonging to the Sudra caste even in the old days ought not to be called 'slaves' as they had very substantial rights against their masters. See also Chatturbhuj Patnaik v. Krishna Chandra Patnaik 17 C.W.N. 442 as to the meanings of 'dasa' 'dasi' and dasiputra.' See also Manu, Chapter VIII, slokas 413 and 414, as to a Sudra being by his natural qualities an irredeemable servant or dasa of the higher castes.]
22. When the connection between a Sudra male and a Sudra female begins in mutual love and they live together as husband and wife continuously by mutual understanding or agreement, I held long ago that such connection was created by the gandharva form of marriage. Mr. B. Sitarama Rao, the learned Vakil for the 3rd respondent, suggested that the ghandharva form of marriage was never legal for Sudras. I am unable to accept the suggestion. A reference to Manu, Chapter III slokas 23 to 25 would indicate that the gandharva and asura forms were considered as the most proper forms of marriage for the servant class by the majority of the old lawyers; though, speaking for himself, Manu would treat the asura form as illegal even for Sudras and leave the gandharva form alone as the approved form. If then 'continuous concubinage is equivalent to marriage' among Sudras, it seems difficult to hold in strict logic that the son born of such a marriage is an illegitimate son. But my opinion that such a son is, according to the Shastras, an aurasa legitimate son cannot now be sustained in a Court of Law in the face of the decisions which describe such a son as an illegitimate son. I, therefore, concur respectfully with the judgment of My Lord the Chief Justice just now pronounced that according to the preponderating weight of the case-law, the son by a permanent concubine, while he is an illegitimate son and not a legitimate son, is entitled to get his appropriate share after the father's death, provided the connection between his father and his mother was not incestuous oradulterous and that his said right is not subject to a further condition that a marriage could have taken place between the father and the mother according to the custom of the caste to which the mother belonged. I respectfully dissent from the decision in Annayyan v. Chinnan 5 Ind. Cas. 84, which holds to the contrary. When the Legislature itself treats the marriage of all widows (including a Brahmin widow) as lawful, it seems to me rather difficult to hold that the permanent connection between a, Sudra widow and a Sudra male is equivalent to an incestuous and adulterous connection because in the sub-caste of the lady, re-marriage is not approved of by custom and to hold in consequence that the son born of such a connection is not entitled to a share. I am for the same reason not prepared to follow the decision in Padala Krishna Rao v. Padala Kumarajamma 15 Ind. Cas. 340, which goes even further than the decision in Annayyan v. Chinnan 5 Ind. Cas. 84 .
23. Mr. B. Sitarama Rao argued for imposing still another restriction that, the mother must have been a virgin when she became the permanent concubine of the plaintiff's father. There is nothing in the Hindu Law texts to support that contention. The well-known text of Manu that the pani-grahanika-mantras can be pronounced only at the marriages of virgins has no relevancy in this connection, as the recitation of Vedic Mantras were neither necessary nor permitted in the conduct of marriages among Sudras.
24. The next question is whether the plaintiff's father was a Sudra and the plaintiff's mother also was a Sudra woman, it being not denied that their connection, was neither adulterous nor incestuous. It seems not to have been contested in the lower Courts, and it was not contested before us, that a Nattukottai Chetty belongs to the Sudra caste. No doubt, according to very learned Sanskrit scholars like Pandit A. Mahadeva Sastri and the late Dewn Bahadur Raghunatha Rao, a Nattukottai Chetty, who belongs to a caste whose profession is not menial service but trading enterprise and money-lending, ought not to be called a Sudra. In fact, it sounds very grotesque now-a-days in the ears of many cultured Hindus to call that community Sudras and not Vaisyas. But as my learned brother Seshagiri Aiyar, J., said in Muthukaruppa Pillai v. Sellathammal (1915) M.W.N. 48 the Sastras cannot go against 'usage' and according to custom and the consciousness of the vast majority of the Hindus, Nattukottai Chetties are Sudras. Hence they must be considered to belong to the Sudra caste.
25. As regards the dancing girl caste, in Palani, Coimbatore and other places, they are usually known as belonging to the Kaikola Mudali caste. Of course, this Kaikloa Mudali caste should not be confounded with the respectable caste of high class Mudaliars. But still Kaikola Mudalis are always recognised by usage as belonging to the Sudra caste and though many of the females of the caste take to the profession of the dancing girls, a respectable proportion are kulastris. Other sub-sections of the dancing girl caste call themselves Kavarais (again not to be confounded with the high class Kavarais) and the Telugu dancing girls call themselves Sanis. Permanent concubinage of females belonging to these castes with males belonging to the several respectable sub-divisions of the Sudra caste is not very uncommon and the children of such unions after a few years (if the father is a very respectable and influential man) or after a few generations (if the descendants continue to lead respectable lives) are quietly incorporated into the father's respectable Sudra sub-caste, the progeny calling themselves Mudaliars, Naidus, Pillais and so on. Such an elevation to respectability is not at all opposed to the genius of the Hindu social polity. Manu says in Chapter X:
Should the tribe spring from a Brahman by a Sudra woman reproduce a succession of children by the marriages of its women with other Brahmans, the low tribe shall be raised to the highest in the seventh generation.
As the son of a Sudra may thus attain the rank of a Brahman and as the son of a Brahman may sink to a level with Sudras, even so must it be with him who springs from a Kshatriya, even so with him who was born of a Vaisya.
He who was begotten by an exalted man on a base woman may, by his good acts, become respectable.
26. It is, however, said that these dancing-girl dasis ought not to be classed as Sudras but as belonging to a fifth caste, and reliance is placed upon the commentary of Vijnaneswara (in the Mitakshara) on the 290th verse of Yajnavalkya. Chapter XXIV in which the verse occurs relates to the subject of illicit intercourse with women and has nothing to do with the law relating to marriage or legitimacy or caste except in a very remote and indirect way. (Colebrooke did not translate the latter portions of the Mitakshara beginning with Chapter IX of the Vyavahara Adhayaya of Yajnavalkya, as they deal with those portions of the Hindu Law which need not and in many cases ought not to be applied by the British Courts of Justice.) A free translation of this 290th verse of Yajnavalkya is: In the case of women who are the house-born servants of another or the kept mistresses of another, even though they are fit for intercourse,' (that is, though there is no other objection to an intercourse with them) the man who has had such an intercourse shall be fined ten panas.' It is clear to my mind that Yajnavalkya, when he uses the expression fit for intercourse gamya in Sanskrit), means that the intercourse is not prohibited as adulterous or incestuous, etc. But the Mitakshara proceeds to invent an objector who says that as every intercourse with even an unmarried woman is immoral whether she belongs to the same caste or a lower caste, or an anuloma caste or a pratiloma caste., intercourse can never be permissible, that is, the woman cannot be 'fit for intercourse.' Vijnaneswara answers by saying that punishment by legal tribunals does not exist in the case of prostitutes who are not under the guardianship of the father or other guardian or in the case of an un-married woman, who, though not a prostitute, is not the kept mistress or dasi of one particular man. And he says that only a private prayaschitham for immorality is prescribed in such cases and not punishment (danda) by the King and his tribunals. 'For having intercourse with brutes or prostitutes, the prajapatya expiation is ordained.' Then he says that though originally there were only four castes or varnas, there have sprung up by the birth of illegitimate children among the castes, persons like Kundas and golakas and their descendants, a very numerous class born of illicit connections of women with men of their own caste or of superior castes. This shows that a prostitute by profession, born in any of the four castes, was called vesya. Then he refers to the Skandapurana and to the fanciful story of ethereal nymphs or apsatasai called panchachudas and their progeny who lead the life of prostitutes (but prostitution only with males of their own birth-caste or with people of superior caste) and all these may be called a fifth caste. As far as I could understand the Mitakshara, the commentator does not intend to say that vesyas are not human beings. He might have meant that prostitutes being the progeny of illicit connections in all varnas may be fancifully styled to be the descendants of the apsarasas called panchachudas, for, immediately afterwards, he says that a vesya might have lawful connection with a man of an equal or superior caste. It seems to be the same sort of allegorical description which says that the four castes were born from and even now form the limbs and organs of the Prajpati Purusha. It is well known that the original Skandapurana has been so much expanded by the, addition of fanciful stories (including many recent sthalamahatmyams) that it is very difficult to say of any passage alleged to be found therein that it is undoubtedly genuine. I shall now say a few words on the value to be given to such passages when the community has not adopted the view enunciated in those passages. The Privy Council has declared that 'under the Hindu system of the law, clear proof of usage will outweigh the written text of the law.' In one recent case the following passage occurs: 'I would say, as a Judge who is bound to follow the authority of the Privy Council, that the rules of the commentators must be discarded, if opposed to custom.' 'Several instances might be cited to show that practices which were valid according to the ancient books are not legally valid now'--for example niyoga. Collector of Madura v. Moottoo Ramalinga Sathupathy 12 M.I.A. 397 Mr. Justice Bhashyam Aiyangar was of opinion that the rule as to lameness being a bar to inheritance had become obsolete. See Venkata Subba Rao v. Purushottam 12 M.L.J. 262. The same learned Judge in Karuppai Nachiar v. Sankaranarayana Chetty 13 M.L.J. 398 said that this branch of the law relating to 'putrika putra' is now obsolete.' So also it has been held that the rule as to impartibility of waters found in the Mitakshara has become obsolete. Again Abdur Rahim, J., in Visvanathaswamy Naicker v. Kamu Ammal 21 Ind. Cas. 724 said: 'Supposing for argument's sake that the gandharva form of marriage would, according to the ancient texts, be permissible among the Sudras, I am of opinion that, so far as this caste is concerned, it must upon the evidence in the case be held to be obsolete and no longer recognised as valid. It has been strongly contended that if ancient Hindu Law texts sanction this form of marriage we must hold that it is valid. But I am not inclined to accept that position. If I find that a certain caste among the Hindus has long given up this form of marriage, and this is shown by their consistently adopting other more regular forms, I do not think that we are still obliged to recognise its validity in that caste.'
27. It is on account of such considerations that, as I said before; I felt obliged, sitting as a Judge, not to press my view that the son born of a permanent concubine to a Sudra is a legitimate son. On similar grounds I think that it is now difficult to hold that the dancing girl caste in the present day is not a sub-division of the Sudra caste, notwithstanding this fanciful story of the Skandapurana, used for a particular dialectical purpose by Vijnaneswara in connection with the question of punishment by the king for intercourse with a public prostitute. (Punishment by the king is danda, while penance for the sin is prayaschitha and the distinction is clearly made by Vijnaneswara) I respectfully adopt the opinion of Sankaran Nair, J., that all those Hindu castes which are not proved to be twice-born must be treated as Sudras, where it is admitted that they are not 'untouchables.' See Muthusami Mudaliar v. Masilamani 5 Ind. Cas. 42. Persons belonging to the dancing girls' caste are freely allowed into temples and Brahmin houses and being paste Hindus, not belonging to any of the three twice-born castes, must, according to the clear consciousness of the vast majority of the Hindu community, be deemed to belong to the Sudra caste. Even if it be held that the Mitakshara does intend to treat a particular class of prostitutes, who claimed to be the progeny of apsarasas (called panchachudas) as not belonging to the Sudra caste, but to a fifth varna, there is nothing to show that the dancing-girl caste to which the plaintiff's mother belonged was not derived from the Sudra caste but claimed to be descended from these apsarasas.
28. Coming to the decision in Appeal No. 56 of 1908, quoted by the 3rd respondent's Vakil, that decision must be deemed to have proceeded on the facts of that particular case as pointed out by my learned brother, Ayling, J., in the judgment just now delivered by Him. I do not think that in a different case, where slightly different (though similar) facts are established, the same conclusion against the existence of the relationship of permanent concubinage is bound to be arrived at. A man who allows his permanent concubine to serve as a domestic servant for wages in a respectable household cannot, in my opinion, be held to have thereby destroyed the permanency of the connection between him and his said concubine, any more than a husband who so allows his wife weakens the matrimonial relationship between himself and his wife.
29. In the result, I would answer the reference by saying that the plaintiff is entitled to a share in the joint family property left by his father.
30. The appeal then came on before their Lordships, Sir John Wallis, C.J., and Seshagiri Aiyar, J., who again made the following.
Second Order Of Reference To A Full Bench.
31. This was a suit by a person, alleging himself to be an illegitimate son of one Ramasawmi Chettiar, for partition against the legitimate son of his father. The Subordinate Judge held that the paternity of the plaintiff was not proved and dismissed the suit. On appeal, we came to the conclusion that the plaintiff was the son of Ramasawmi Chettiar. On a reference to the Full Bench, it was decided that he is entitled to the share of an illegitimate son in his father's property. While the appeal was pending in this Court, the legitimate son died unmarried. His mother was brought on the record as his legal representative.
32. It is now contended for the appellant that he is entitled to the whole of the property of Ramasawmi Chettiar by survivorship. The respondent's Vakil argues that by the presentation of the plaint for partition, the plaintiff became a divided member and that consequently he is not entitled to succeed to his legitimate brother by survivorship. He has also raised a preliminary objection on the ground that as the suit was framed for partition, it ought not to be converted into one for sole possession. We see no force in this latter contention. The claim of the plaintiff was to establish his status as an illegitimate son and to obtain a share in His father's property on that footing. The claim for partition is consequent on the declaration of status. The relief claiming sole possession is similarly consequential. This objection must be overruled. On the main question of survivorship, the observations of the Judicial Committee in Suraj Narain v. Iqbal Narain 18 Ind. Cas. 30 : 35 A.d 80 are relied on by the respondent. Very recently Sankaran Nair, J. in Pothi Naicken v. Naganna Naicker0(915) M.W.N. 303 held that these observations clearly mean 'that it is open to a member of an undivided family governed by the Mitakshara Law to effect a separation between himself and the other members of the family by a declaration to that effect made to the other members.' It is accordingly contended that the plaint in this suit which was served on the defendant was a declaration by the plaintiff of his intention to separate himself from his undivided brother, and effected a partition. This view is not consistent with the decisions of this Court in Sudarsanam Maistri v. Narasimhulu Maistri 11 M.L.J. 353 and Thandayuthapani Kangiar v. Ragunatha Kangiar (1911) 1 M.W.N. 223 or with the decisions of some of the other High Courts. Appeal No. 119 of 1912 is now the subject of a Letters Patent Appeal, but as the other learned Judge disposed of the case on other grounds, it may not be necessary to decide the point in that case, and as the question is one of great importance we have decided to refer it to a Full Bench. We, therefore, refer the question, whether a member of a joint Hindu family becomes separated from the other members by the fact of suing them for partition.'
33. [The appeal was heard by the Full Bench on the question referred to.]
34. Mr. A. Krishnaswamy Iyer for Mr. K.N. Aiya Aiyar, for the Appellant.--A mere unilateral expression of intention to separate is not enough to effect a severance of the co-parcenary, unless the same is accepted by or acquiesced in by the other members. This view is not only supported by the Hindu Law but has also been uniformly recognised by the decisions of the Courts. According to Mitakshara, a 'partition' is the adjustment of diverse rights regarding the whole. (Chapter I, Section 1, pl. 4.) It follows that a division must be the act of all the parties interested, if not by the Court. See also Subodhini, Balambhatta and Viramitrodaya. The Mayukha, Chapter IV, Section IV, pl. 2, supports the contrary view. This text, I submit, refers only to a case where there is no property to divide. Nilakanta supports the former view. (See Mandlik's Hindu Law, page 38.) Sarasvati Vilasa distinguishes between the case of the family owning and not owning property, and states that in the latter case alone division may be effected by a unilateral declaration of intention. In Pothi Naicken v. Naganna Naicker 28 Ind. Cas. 625 : (915) M.W.N. 303 Sankaran Nair, J., wrongly supposes that in Suraj Narain v. Iqbal Narain 18 Ind. Cas. 30 the Privy Council accepted the view of the Calcutta High Court that an unilateral declaration effected a severance. The Calcutta cases do not lay down any such rule. The observations in the case in Bulakee Lull v. Musammat Indurputtee Kowar 3 W.R. 41 are obiter. Musammat Vato Koer v. Rowshun Singh 8 W.R. 82 merely interprets Appovier v. Rama Subba Aiyan 11 M.I.A. 75. See also Sadabart Prasad v. Foolbash Koer 12 W.R. 1 (per Peacock, C.J., at page 7) approved in Madho Pershad v. Mehrban Singh 17 I.A. 194. In Brojo Kishore Mitter v. Radha Gobind Dutt 12 W.R. 339 it was held that the institution of a suit, though an unambiguous act, was insufficient to effect division. Sudaburt Pershad Sahoo v. Lotf Ali Khan 14 W.R. 339 is only a note of dissent from Sadabart Prasad v. Foolbash Koer 12 W.R. 1. See also Joy Narain Giri v. Goluck Chunder Mytee 25 W.R. 355; Collector of Monghyr v. Hurdai Narain Shahai 5 C.L.R. 112; Radha Churn Dass v. Kripa Sindhu Dass 4 C.L.R. 428; Raghubanund Doss v. Sadhu Churn Doss 3 C.L.R. 534; Tej Protap Singh v. Champa Kalte Koer 12 C.k 96; Bata Krishna Goswami v. Gopal Krishna Goswami 5 C.L.J. 417 and Banwari Lal v. Sheo Sankar Misser 13 C.W.N. 815. The cases, in Appovier v. Rama Subba Aiyan 11 M.I.A. 75: 1 Suth. P.C.J. 657; Ram Chunder Dutt v. Chunder Coomar Mundul 13 M.I.A. 181 and Chidambaram Chettiar v. Gauri Nachiar 5 C.L.R. 6hold that partition could only be effected by mutual consent. The expression 'earlier', occurring in the last case, does not refer to the institution of the suit. In Joy Narain Giri v. Girish Chunder Myti 5 I.A. 228 mesne profits were awarded from the day the plaintiff left the family as there was exclusion from participation therein. See also Balkishen Das v. Ram Narain Sahu 7 C.W.N. 578; Ram Pershad Singh v. Lakhpati Koer 7 C.W.N. 162 and Parbati v. Naunihal Singh 31 A.p 412. The discussion regarding the consent of the guardian in the last case entirely supports my position and would be useless, if otherwise. In Suraj Narain v. Iqbal Narain 18 Ind. Cas. 30 the point was left open, though it was assumed for purposes of argument. The dictum, even if any, was only casual. In Madras the decisions have been uniform that to effect a severance, there must be mutual assent or decree of Court and mere institution of a suit had no such effect. See Appovier v. Rama Subba Aiyan 11 M.I.A. 75; Subbdraya Mudali v. Manika Mudali 19 M.k 345; Sudarsanam Maistri v. Narasimhulu Maistri 25 M.k 149; Thandayuthapani Kangiar v. Ragunatha Kangiar 10 Ind. Cas 660 and Balakrishna Mudaliar v. Raju Mudaliar 27 Ind. Cas. 736 The Bombay decisions are also to the same effect, though under the Mayukha, Moro Vishvanath v. Ganesh Vithal 10 B.H.C.R. 444; Babaji Parshrav v. Kashibai 4 B.k 157 and Murari Vithoji v. Mukund Shivaji Naik Golatkar 15 B.k 201. Any other interpretation of the Privy Council decision will lead to anomalies. In Sangili v. Mookan 3 M.L.J. 137; Subbaraya Mudali v. Manika Mudali 19 M.k 345; Banwari Lal v. Sheo Sankar Misser 13 C.W.N. 815 and Babasi Parshram v. Kashibai 4 B.k 157 it was held that a filing of the plaint did not effect a division of status. An alienation of a co-parcener's whole interest has been held not to constitute severance. A man is not allowed to bequeath his share of joint family properties except with the consent of his co-parceners. See Nanjaya Mudali v. Shanmuga Mudali 22 Ind. Cas. 555 and Maharaja of Bobbili v. Venkataramanjulu Naidu 25 Ind. Cas. 585. See also 24 Halsbury's Laws of England, Section 204; Freeman on Co-tenancy, 30, 31; Lord Hardwike in Partriche v. Powlet 2 Atk. 54 and In re Wilks Child v. Bulmer (1891) 3 Ch. 59. The inconvenience attendant upon the upholding of the opposite view will be obvious and the principle of stare decisis ought to apply.
35. Messrs. S. Srinivasa Iyengar and B. Sitarama Row, for the Respondents.--The matter is concluded by the authority not only of the texts of Hindu Law but also by the decided cases. Mitakshara, Ch. I, Section 1, pl. 4, merely defines partition or rather states its effect. Manu, Ch. IX, Section 104, lays down that one of the modes by which severance can be effected is by mutual agreement. The text of Manu is not exhaustive. Vide Viramitrodaya, Ch. II, pl. 5. Saraswati Vilasa, pl. 28, lays down that mere intention to divide creates a severance. The rule applies not only to religious duties but also to property. When there is no property, religious duties alone can be divided and if property existed, that must be divided before the duties, but in either case mere unilateral intention is enough. Section 30 makes the meaning perfectly clear. See also Mayukha, Ch. IV, Section IV, pl. 2. The footnote on page 38 of Mandlik's Hindu Law is not against me. The statement of agreement as one of the modes of severance in Appovier v. Rama Subba Aiyan 11 M.I.A. 75 is not exhaustive. Beside mutual consent a disruption of the joint family can be brought about by renunciation, exclusion, conversion, unilateral declaration, alienation, award, decree, attachment, &c.; Sudarsanam Maistri v. Narasimhulu Maistri 25 M.k 149 is not correctly decided. See Thangavelu Pillai v. Doraisami Pillai 26 Ind. Cas. 211. An alienee from a co-parcener becomes a tenant-in-Common with the other co-parceners Aiyyagari Venkataramayya v. Aiyyagari Ramayya 25 M.k 690; Chinnu Pillai v. Kalimuthu Chetti 9 Ind. Cas. 59; Subba Row v. Ananthanarayana Iyer 14 Ind. Cas. 524 and Ram Chunder Dutt v. Chunder Coomar Mundul 13 M.I.A. 181(cases of alienations); Joy Narain Giri v. Girish Chunder Myti 4 C.d 434 (exclusion); Assamathem Nessa v. Lutchmeeput Singh 2 C.L.R. 223 and Madho Parshad v. Mehrban Singh 17 I.A. 194 (attachment); Kulada. Prosad v. Haripada Chattopadhyaya 17 Ind. Cas. 257 (conversion). See Mitakshara Ch. I, Section 11; pl. 2 (father can effect partition between sons without reference to them). Tej Protap Singh v. Champa Kalee Koer 12 C. 96 has no application to this question. There is nothing strange in allowing unilateral declaration to have the effect of division. Of. Muhammadan talak. There is nothing in principle against so holding. In Suraj Narain v. Iqbal Narain 18 Ind. Cas. 30 all the Calcutta cases in favour of this view were referred to in arguments and they were accepted by the Privy Council. The dictum is not casual but a considered pronouncement. Thandayuthapani Kangiar v. Rugunatha Kangiar 10 Ind. Cas 660 is not good law. The plaint is enough to constitute division. Mesne profits are calculated from the date of institution of suit. Communication of intention to the manager is enough in the case of members who are not managers, and in the case of the latter it must be to all the other adult members. As soon as notice of the suit is served on the other side, the severance is complete. See also Bhattacharjee's Hindu Law, page 590; Sircar on Hindu Law, page 236. In re Wilks, Child v. Bulmer (1891) 3 Ch. 59 supports this position. The principle of stare decisis does not apply. The point has not been decided in any Madras case. The argumentum ab inconvenientum has no application as no vested right is affected.
36. After hearing arguments of Counsel etc., the Full Bench expressed the following
37. The arguments in favour of a negative answer to the reference have been very ably presented by Mr. A. Krishnasamy Aiyar, but after all it comes back to this, what is the effect to be given to the following passage in the judgment of their Lordships of the Judicial Committee in Suraj Narain Iqbal Narain 18 Ind. Cas. 30: 'The principle applicable to cases of separation from the joint undivided family has been clearly enunciated by this Board in Rewun Persad v. Musammat Radha Beeby 4 M.I.A. 137 and the well-known case of Appoovier v. Rama Subba Aiyan 11 M.I.A. 75. What may amount to a separation or what conduct on the part of some of the members may lead to disruption of the joint undivided 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. In the present case that element appears to their Lordships to be wholly wanting '
38. It was argued that there was nothing in these two cases about separation by the unilateral act of the separating member; that as regards two later decisions which were referred to as supporting it, the statement in Ram Chunder Dutt v. Chunder Coomar Vundul 13 M.I.A. 181 that the alienation of their shares by two members of a joint family terminated the joint status was obiter, as the litigation was between these alienees and the alienee from the other member of the family; and that the observation in Chidambaram Chettiar v. Gauri Nachiar 2 M.k 83 about separation having been effected by decree or earlier referred, as appeared from the printed book, to the opinion expressed by the Trial Judge that separation might be held in that case to have taken place even before decree as the defendants had consented to it during the trial and there was then a concurrence of wills. Certain other cases were referred to in which it was said their Lordships had treated partition as effected by the decree. These cases, however, were cited before their Lordships in the course of the argument as well as the Calcutta cases which contain observations in favour of unilateral separation and the dissent from this view in Aiyyagari Venkataramayya v. Aiyyagari Ramayya 25 M.k 690. In these circumstances I do not think that Courts in India would be justified in treating the statement in their Lordships' judgment that a definite and unambiguous indication by a member may amount to separation, as intended to express no opinion one way or the other, but to leave the matter open as unnecessary to decide seeing that no such definite and unambiguous indication was proved in the case. I am, herefore, constrained to answer the question in the affirmative, though I do so with some reluctance, as the opposite view has, I think, prevailed in this Court and is more in harmony with decisions of this Court on certain other questions which are dealt with in the judgment of my learned brothers.
39. None of the Privy Council decisions on this question proceed upon the authority of Hindu Texts, but, as the question has been argued from that standpoint, I may say that I do not think the texts to which we have been referred support the doctrine of partition by unilateral act. Vijnaneswara says nothing about it in the Mitakshara. The passage which has been cited from the; Sarasvati Vilasa begins with a complaint that the author of the Mitakshara had characteristically perhaps said nothing about division or separation as regards religious duties and merely endeavours to supply the omission. What the author says, if I rightly understand him, is this. Separation in religious duties cannot take place without partition of wealth, where wealth exists, pl. 29. What however if the family has no property to divide? He cites Vishnu for the proposition that there may be a division of religious duties alone, but only, he explains, for those who have no wealth, pl. 28. In their case he says, pl. 30, the separate performance of religious duties with or even without the others consent constitutes a partition of religious duties; but in the case of those who have wealth partition of wealth takes place.' The only partition he appears to contemplate in the case of those who have wealth is actual division and this, of course, involves consent. Mayukha, Section 3, pl. 4, seems merely to reproduce, in an abbreviated form, the view of the Saraswati Vilasa as to partition when there is a total failure of common property. The comment in the Viramitrodaya, Ch. 2, Pt. 1, pl. 5, that an actual assemblage of brothers is not necessary to effect a partition though it is mentioned in Manu, 1X; 104, does not, I think, affect this question. My answer is in the affirmative.
Sadasiva Aiyar, J.
40. The question referred by the Division Bench to the Full Bench is whether a member of a joint Hindu family becomes separated from the other members by the fact of suing them for partition.
41. In Madras, it seems to have been generally assumed by the Bench and the Bar till the Privy Council decision in Suraj Narain v. Iqbal Narain 18 Ind. Cas. 30that no separation of the plaintiff in status, which will affect what is loosely called the right of survivorship, takes place by the mere fact of the suit for partition and that it is only the decree of the Court passed in the suit which affects such status. In Subbaraya Mudali v. Manika Mudali 19 M.k 345 there is the following obiter dictum: 'The right to continue a suit for partition after the death of the plaintiff would, of course, not devolve on his widow or other heir, not being a co-parcener of the defendant, because immediately on the death happening before the decree, the right of survivorship would take effect.' In Sudarsanam Maistri v. Narasimhulu Maistri 11 M.L.J. 353 the following obiter dictum occurs at page 156: 'Any such person' (that is a member of an undivided Hindu family) 'may also retire therefrom' (that is from the membership in the undivided family by civil death...or by renunciation on his part acquiesced in by the remaining members, provided such renunciation and acquiescence are manifested by an overt act--namely, the giving him 'some trifle' out of the family property.' 'With all deference to Garth, C.J., I find myself wholly unable to concur in the proposition enunciated by that learned Judge that a mere declaration by one member, that he was separate from the others, would seem to be sufficient to effect the separation.' Radha Churn Dass v. Kripa Sindhu Dass 4 C.L.R. 428' These seem to me to be the only dicta that directly negative the proposition that it is open to a member of an undivided Hindu family governed by the Mitakshara Law to effect separation between himself and the other members by an unequivocal and unambiguous declaration to that effect made in the plaint in a suit for partition brought by him, even after that declaration has been communicated to the other adult male members by the service of summonses in the suit. There are observations in numerous other judgments, not only of this High Court but of the other High Courts and of the Privy Council, that a partition of status is made by mutual consent or by decree of Court, but those observations cannot be safely relied on as implying that except in those two modes, partition of status cannot be effected and that only in those modes, it could be effected. It is well established that even without the consent of his sons who are his co-parceners, a father can effect a partition among his sons and between himself and his sons and it has been further held that without an express agreement to divide, partition in status is effected by conduct such as separate messing, separate contracting of debts, separate dealings with properties, mutual dealings on the footing of separate interests and so on. See Gadian Chettiar v. Gadian Chettiar 26 Ind. Cas. 43 and Musammat Josoda Koonwar v. Gourie Byjonath Sohae Singh 6 W.R. 139. As I have said already, even the direct pronouncements in Jayinilabdin Ravuttan v. Vijia Ragunadha Ayyarappa Maikan Gopalar 19 M.k 345 and Sudarsanam Maistri v. Narasimhulu Maistri 25 M.k 149 are obiter.
42. In several cases in the Calcutta High Court, on the other hand, cases falling under the Mitakshara Law, there are dicta (though, again, mostly if not wholly obiter dicta) that an unequivocal declaration by one member with' or to the knowledge of the other members does effect a division in status. See Bulakee Lall v. Musammat Indurputtee Kowar 3 W.R. 41; Musammat Josoda Koonwur v. Gourie Byjonath Sohae Singh 6 W.R. 139 ; Musammat Vaio Koer v. Rowshun Singh 8 W.R. 82; Debee Pershad v. Phool Koeri 12 W.R. 510; Sudaburt Pershad Sahoo v. Lotf Ali Khan 14 W.R. 339 and Raghubanund Boss v. Sadhu Churn Doss 3 C.L.R. 534.
43. I do not think it necessary to refer to the other numerous cases decided by our. High Court and the other High Courts quoted before us, as they do not contain any dicta directly dealing with the proposition for which the defendant contends in this case, namely, that an unequivocal declaration does create a division of status. These other cases deal (1) with the effect of an alienation attempted to be made by Will of his undivided share in the whole or in one or more of the co-parcenary properties or the alienation of the entire ownership in one or more such properties by a member of the co-parcenary or (2) with the effect of gifts inter vivos so attempted to be made or (3) with the effect of alienations inter vivos for value so made. The observations found scattered in such cases were relied on for the purpose of showing that as the logical result from those observations, there followed either the affirmative or the negative of the above proposition for which the defence contends in the case before us. The development of law is not always logical and the development of the Hindu Law in connection with the legal effect of alienations by a member of a co-parcenary cannot be proved, in my opinion, to be strictly logical even by the employment of the highest ingenuity and learning and I, of course, shall not attempt to do so. Similar observations apply to the law relating to the son's liability for the father's debts, the law relating to alienations for discharging such debts, the law relating to the rights of alienees from the incumbent of an Impartible zamindary, the law relating to succession to such zamindaries and to many other branches of Hindu Law. In Chinnu Pillai Kalimuthu Chetti 9 Ind. Cas. 596, in the opinion of the Hon'ble Mr. Krishnaswami Aiyar printed at page 59, the following occurs: 'But it does not follow from this that if a co-parcener alienates his interest in family property, the alienee has, until actual partition, no definite share in the property. Like the alienee from a joint tenant in England the alienee from a co-parcener in India has a fixed share in the common property with reference to the date of alienation.' This implies that the alienor who sells away his share in all the coparcenary properties becomes severed from the joint family and the alienee becomes a tenant-in-common with the other co-parceners in respect of the share so alienated. [See also the decision in Aiyyagari Venkataramayya v. Aiyyagari Ramayya 25 M.k 690, the judgment of Sundara Aiyar, J., in Doraisawmy Serumadan v. Nandisawmi 12 Ind. Cas. 695 and the decision of Benson and Sundara Aiyar, JJ., in Subba Row v. Ananthanarayana Iyer 14 Ind. Cas. 524. I respectfully agree with the above opinions, and respectfully dissent from the decisions which have held that the alienor co-parcener continues to be a member of the undivided Hindu family (and is hence entitled to the accretions to his share caused by the subsequent death of co-parceners dying without leaving male issue) and from the decisions which hold that the alienee from a co-parcener does not get any rights in or title to the share of the alienor but only an 'equity' to be worked out in a partition suit. Some of the decisions I so respectfully dissent from are found in Nanjaya Mudali v. Shanmuga Muduli 22 Ind. Cas. 555, Ganesh Row v. Tulga Ram Row 24 Ind. Cas. 696 and Maharaja of Bobbili v. Venkataramanjulu Naidu 25 Ind. Cas. 585.
44. Before proceeding further, I shall first consider the question whether the filing of a suit for partition is, in the language of the Privy Council, a definite and unambiguous indication by one member of his intention to separate himself and to enjoy his share in individuality' and whether such intention is made 'unequivocal' by the filing of the plaint and becomes 'clearly expressed' to the other co-parceners by the summonses served on them in the suit. It seems to me that if the plaint is filed, not merely for a declaration of the plaintiff's right as a co-parcener in an undivided family as in the old Calcutta case referred to as Debee Pershad v. Phool Koeri 12 W.R. 510 but is brought for a partition of the joint family property on the basis that the plaintiff wishes to be treated as a divided co-parcener from the date of the plaint (if not from an earlier date) and if he seeks for mesne profits at least from the date of the plaint, if not from an earlier date, and asks for the division of the properties as they stood at the date of the plaint, if not at an earlier date, it seems to me difficult to conceive of a stronger, more unequivocal and more unambiguous declaration of an intention to separate himself and if that intention is communicated through the Court by summonses issued to the defendants (the remaining co-parceners) in that case, such clear expression of intention becomes fully effectual to create division in status. I take it that the phrase 'clearly expressed' means 'clearly expressed to the definite knowledge of the other co-parceners.'
45. I shall now proceed to consider the Hindu Law Texts on this point. Manu in Chapter 9, Sloka 111, seems to treat a separation in living and messing as a very laudable act as it multiplies religious acts, and hence a mere desire to live apart and the consequent living apart among brothers as effecting separation in interest so as to put an end to the right of the eldest brother to manage the whole patrimony. Saraswathi Vilasa deals in placita 22 to 33 with the question of what constitutes division of status. In placitum 29 it lays down the rule that, in the case of brothers who have wealth, partition of religious duties should be made only after the partition of wealth. In placitum 28, it lays down another general rule that partition can be effected by mere intention just as the making of an appointed daughter can be effected by mere intention without any formality.' It seems to me clear that in this placitum the word, 'partition,' does not exclude partition of wealth and is not confined to partition of religious duties as argued by Mr. A. Krishnaswami Aiyar for the appellant. Placitum 30 is as follows--'Therefore, also in the case of those who have no wealth, the separate performance of religious duties with or even without others' consent constitutes a partition of religious duties; but in the case of the rich, partition of wealth takes place.' It seems to me that the phrase 'with or even without others' consent' is introduced so as to show the applicability of the general rule laid down in placitum 28, that mere intention without the other co-parceners' consent does effect a division, and not to introduce any qualification that, as regards partition of wealth, others' consent is necessary. The distinction made is not between the creation of a division in status with or without others' consent in the case of religious duties and the creation of a division in status with others' consent alone in the case of partition of wealth, but between the creation of a division in status in the case of those who have no wealth effected by a separate performance of religious duties alone with or without consent and the creation of a division in status by a separation of interest in wealth only with or without consent in the case of those who have wealth, because a separate performance of religious duties alone in the case of co-parceners who have wealth is not sufficient to effect division in status.
46. In placitum 33, the Saraswathi Vilasa declares that not only Manu and Yajnavalkya every Smrithi and every commentator and the Nibandha Kara without exception favour division in status, thus showing that the true Hindu Law does not favour the doctrine of joint status, though customs borrowed from the Malabar Marumakkathayam system or other sources might have gradually encroached upon the Shastraic Law originally followed.
47. Again even in the case of those who have wealth, a co-parcener who has not effected division in status by getting his share of the wealth or by a clear intention expressed to his other co-parceners can, by conduct continued for a number of years, be deemed to have expressed that intention, that conduct being the separate performance of religious ceremonies for ten years. This is provided for by placitum 34. Placitum 34 cannot apply to those who have no wealth as the separate performance of religious duties in their case without any condition as to the length of the period at once severs the interests. In fact, placitum 34 says that those separately performing religious duties for 10 years should be understood as divided in respect of the paternal wealth,' that is, even without actual division or declaration of intention to divide. The ten years' period is, of course, only a rule of evidence under the old Hindu Law which is not now binding on the Courts which are governed by the Evidence Act.
48. In the Viramitrodaya, placitum 4, of Chapter II says at the end that even while the mother is living (after the father's death) the sons have no right to the parental wealth as they ought to be dependent on the mother for their support and maintenance. Then placitum 5 clearly states that the status of division is created at the desire of a single co-parcener and hence a meeting of the brothers in order to arrive at a consensus in respect of divided status is not necessary.
49. In Vyavahara Mayukha, Section 3, placitum 2, it is said 'Also when there is a total failure of common property, a division in status may even then be made, by the mere declaration, 'I am separate from thee'; for, a partition merely indicates a state of the mind. Transactions relating to partition are only declaratory of this mental state.' I am unable to accept the far-fetched gloss of Mr. A. Krishnaswami Aiyar on the last two sentences that they relate only to those who have no secular wealth to divide, nor can I accept the still more far-fetched comment of Mr. Mandlik that the Bombay author of the Vyavahara Mayukha was influenced by the Bengalee commentator Jimuta Vahana.
50. If a co-parcener can demand partition and separation of his share at any time and if the other co-parceners are legally bound to give him his share at once, it seems to me clear that separation in interest takes place as soon as he expresses an unequivocal intention to that effect or makes an un-equivocal demand for partition, and that the necessary delay in ascertaining the particular property which falls to his share either by agreement or by an award of Panchayats or by a decision of the Court cannot delay the separation in status. As it is put in Raghubanund Boss v. Sadhu Churn Doss 3 C.L.R. 534, this separation of status by declaration and communication of intention has its origin in the power of each member of a family to demand a partition at any moment and the inability of the family to retain any member in joint ownership longer than he may desire.' The managing member of an undivided Hindu family cannot surely represent a junior member after the latter refused to remain a member of the undivided Hindu family and demanded his share, except, of course, in respect of dealings with third persons to whom notice had not been given of said junior member's intention to terminate the agency of the managing member. If, as was argued, the English Law of joint tenancy does not allow a joint tenant by a mere unilateral declaration to make the joint tenancy a tenancy in common so as to defeat the right of survivorship See Lord Hardwike in Partriche v. Powlet 2 Atk. 54 quoted in In re Wilks Child v. Bulmer (1891) 3 Ch. 59 and the opinions of Lord Thurlow and Lord Hatherly given at page 63], that rule of the English Law has, in my opinion, no relevancy in the decision of the question of Hindu Law whether a co-parcener of a joint undivided Hindu family can put an end to his status as undivided co-parcener by such declaration. Even in English Law, joint tenancy with the right of survivorship was never favoured by Courts of Equity and the increasing tendency has been to take advantage of slight indications to convert a joint tenancy to a tenancy-in-common. Alienations by a joint tenant of his share to a third party severs the joint tenancy in English Law. In Narayanasawmi Naidu Garu v. Tirumalasetti Subbayya 16 Ind. Cas. 698. I said, 'I am of opinion that Courts should lean against the continuance of joint tenancies and against claims of survivorship.' See page 100. 'The ancient Hindu Law knew, according to the learned writer, Mr. J.C. Ghose, no such principle as joint tenancy and no principle of survivorship.... Equity also does not favour joint tenancies and rights of survivorship.' I know it has been said that the Mitakshara recognised the principle of survivorship and joint tenancy and I myself have, following the language used by the highest authorities, stated so. The Mitakshara first created a revolution (it may be that it sanctioned by its authority or recognised the revolution already being effected by the then prevailing customs) by giving the son's rights by birth jointly with the father in ancestral properties, taking advantage of the moral admonitions addressed in ancient texts to the father not to alienate his ancestral properties so as to leave his children penniless. Then the right of the widow of a sonless co-parcener to inherit her husband's share was denied to her and the other male co-parceners were made the inheritors of that share. The whole of Chapter II, Section I, placita 1 to 39, of the Mitakshara which contains the ingenious special pleading by which the widow of an undivided sonless co-parcener was disqualified from inheriting his share in the estate, does not contain a word about survivorship. Vijnaneswara professes to find equally authoritative texts for either view as to the rule of inheritance, some texts recognising the right of the widow and some excluding her on the ground of incapacity to perform religious ceremonies and he then professes to reconcile the texts by saying, not that any principle of survivorship prevents the inheritance of the widow, but that the succession itself to the undivided share of the deceased co-parcener passes to the remaining co-parceners. This idea of a distinction between accretion by survivorship and the passing of property by inheritance or succession proper seems absolutely foreign to Hindu Law. I cannot but believe that because the other co-parceners were to inherit the deceased sonless co-parcener's share under the Mitakshara instead of the proper female heir under the old texts (namely, the widow or the daughter, if the widow had died) inheriting it, a confusion of ideas based upon the notion of English Law that the surviving joint tenants get the deceased tenant's share by survivorship was introduced into the consideration of cases under the Hindu Law. That there are numerous differences between the joint tenancy of the co-parceners in a Mitakshara Hindu family and the joint tenancy as understood in English Law has been recognised in several cases. As Sankaran Nair, J., says in his judgment in Pothi Naicken v. Naganna Naicker 28 Ind. Cas. 625 'it is argued that the joint tenancy has been converted into tenancy in-common. The differences between the joint tenancy of a Hindu family and as it is understood in English Law must be borne in mind. In the former the joint tenancy has its origin in birth and not by conveyance. There is no unity of possession, the managing member being alone entitled to it against the others. There is no unity of title as the members do not derive their interest at the same time. There is no unity of time as they do not hold for the same time and from the same time. There is no unity of interest as some may be entitled to larger shares than others. The chief characteristic of survivorship does not exist as a co-parcener's interest devolves, not on all the others but only on his sons, if any. A co-parcener's interest again is liable to diminution unlike the interest of a joint tenant in English Law.' In the well-known case Appovier v. Rama Subba Aiyan 11 M.I.A. 75, Lord Westbury no doubt said: 'Thus the joint tenancy is severed, and converted into a tenancy-in-common.' But he carefully added the qualifying clause using the language of the English Law merely by way of illustration.' I cannot, however, help thinking (as 1 said before) that notwithstanding this qualifying phrase, the idea of a right by survivorship in the remaining co-parceners instead of a right by succession, which is the right known to Hindu Law, has coloured the language of almost all the subsequent decisions. It seems to me, therefore, with the greatest respect that if a mere alienation by a co-parcener even under the English Law severs the joint tenancy so as to prevent the right of survivorship, to hold that under the Hindu Law (which knows no such principle as the principle of survivorship and into which the principle of survivorship was introduced by a side wind as a synonym for the right of succession of undivided co-parceners to the share of a deceased co-parcener) an alienation by one of the co-parceners even of his entire interest does not sever the joint tenancy seems to me inadmissible. I should, in this connection, like to fortify my opinion as to the true Hindu Law by the following quotation from the Tagore Law Lectures of a very learned Hindu Lawyer Mr. Bhattacharyya. He says (pages 53 to 55). 'Now, we shall see that the members of an undivided Hindu family stand very much in the same relation to one another as joint tenants under the English law do. Each member has possession over the whole of the joint family property, and if one member dies, his right devolves upon the rest under certain limitations. Thus we shall see that in a true joint family, that is, in a joint family governed by the Mitakshara Law, the widow of a deceased member does not succeed her husband to his rights, but the whole joint property remains as before subject to the title and possession of his undivided co-parceners, in a case in which the deceased member had no lineal descendant to take his place. This is the feature of a joint family governed by the Mitakshara Lawwhich strikes every student of Hindu Law of Succession as the most distinctive. I have no doubt that it was this peculiar feature, which at once suggested to the minds of the early British administrators of Hindu Law, the close resemblance betweenthe joint tenants under the English Law and the joint Hindu family under the Mitakshara Law. This is called the right of survivorship--a term unknown to the original texts; nor do we know, nor can we pitch upon, any expression in Sanskrit which would convey the idea. This is not to be wondered at; for the original texts do not treat much of the law relating to undivided families; the sayings of the ancient sages, such as Manu and Yajnavalkya, directly making mention of undivided co-parecncrs are few; nor have the later authors, such as Vijnaneswara and Vachespati Misra, dwelt at length upon the subject. We have at present a goodly mass of legal maxims which lay down the rights, the liabilities, the status, the obligation and the duties of the members of a joint Hindu family; but those maxims are to be gathered from the case-law as it has been developed by the British administrators of justice for the people of India. It consists of a number of deductions gradually made from the few principles to be obtained, generally in the Mitakshara, and sometimes also in other authorities. The number of such authorities is not very large.' 'But be that as it may: the doctrine of survivorship, which was never put into a form or words by any writer of original texts of Hindu Law, from the Mitakshara downward, has yet proved a powerful engine in the development of the case-law on the subject of Hindu joint families. As soon as it was observed that there was very tangible analogy between Hindu co-parceners and English joint tenants, it was inevitable that incidents of English joint tenancy should have been extended to the legal position of the Hindu co-parceners, at least in cases where such extension did not run counter to anything to be found in the original texts. We must remember that the Judges who did this, had no other course left open to them; for they were familiar with the law of the English joint tenancy; they saw nothing in the original texts, or in the translations, to guide them in the particular instances; certainly the most reasonable course for them was, avowedly or not, to take advantage of that other law they were familiar with, supported as this course was by the analogy already adverted to.'
51. I shall now pass on to consider the two Privy Council decisions which seem to me to be almost conclusive on the question. In Ram Chunder Dutt v. Chunder Coomar Mundul 13 M.I.A. 181 their Lordships say: 'It is true that the status of the family as a joint Hindu family was not continuing. The alienation of the shares of two members of that family to the Munduls determined that status, and substituted the status of co-sharers or joint owners, whose rights, as is shown by Lord Westbury in the case of Appovier v. Rama Subba Aiyan 11 M.I.A. 75, are in many important respects distinguishable from those of a joint and undivided family.' I think this is a clear and unambiguous authority for the proposition that an alienation by a co-parcener does effect a severance of the joint status of the family so as to prevent the right of survivorship. In the latest case of Suraj Narain v. Iqbal Narain 13 M.L.T. 194 their Lordships say: 'What may amount to a separation or what conduct on the part of some of the members may lead to disruption of the joint undivided 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. In the present case that element appears to their Lordships to be wholly wanting.' I think these sentences clearly indicate that the conduct on the part of some members alone without the consent of other members may lead to disruption and convert the joint tenancy into a tenancy-in-common and that the definite and unambiguous indication of intention by one member, if unequivocal and clearly expressed, can amount to separation. After full consideration, I am wholly unable to accept the argument of Mr. A. Krishnaswami Aiyar for the appellant, (based on an undue emphasis on the word 'may') that their Lordships only intended to assume for the purpose of argument that a definite and unambiguous intention unequivocally and clearly expressed may amount to separation and that they did not intend to decide that it would amount to separation. That even an attachment of a co-parcener's share by a simple money-decree-holder will prevent survivorship has been decided in numerous cases. See Muthusami Chetty v. Chunammal 21 Ind. Cas. 321 and Thadi Ramamurthi v. Moola Kamtah 24 Ind. Cas. 667. Unless the joint tenancy becomes severed and converted into a tenancy-in-Common by the attachment and seizure of the share of the co-parcener, I think it is difficult to find a tenable basis for such decisions, mere vague references to the equities of creditors and of alienees for value not creating in my mind any nexus between the attachment or alienation on the one hand and the extinction of the right of survivorship on the other. Mr. A. Krishnaswami Aiyar argued that if an unilateral declaration by a co-parcener deliberately and clearly expressed to others severs the so called joint tenancy, it will lead to several practical inconveniences. I do not feel much impressed by this argument. The older and purer Hindu Law was altered by the Mitakshara so as to prevent widows from inheriting their husbands' share and it is now almost a truism with careful students of the Shastras that the older and purer sources of Hindu Law are more in consonance with the needs of a progressing and progressive society than the rules introduced by the glosses of medieval commentators on those texts (the glosses very often being far-fetched and even distorting the texts), Such new rules were made according to the temporary exigencies of the times and places, a commentator belonging to one part of India or to one period of its history differing from a commentator on the same texts in another part or in another period. The consequent degradation of the Hindu Law by the medieval commentators, which led to the doctrine of rights by birth in sons (instead of merely moral claim by birth), the doctrine of the right of a son to question alienations by his father and to the exclusion from inheritance of most female heirs except under exceptional circumstances, is being gradually got rid of through the development of the law by the several decisions of the Privy Council and the older and purer Hindu Law is being gradually brought back. The power of the father to alienate for antecedent debts and the power of the father's creditor to pursue his remedy against the whole property for the father's debts have been now established so as to restore the earlier purer Hindu Law. The decisions of the Privy Council, therefore, which tend to defeat the artificially introduced right of survivorship (introduced not even by Hindu commentators and introduced in comparatively modern times) so as to restore the purer Hindu Law which allowed inheritance by widows and other female heirs to a deceased co-parcener's share, should not, in my opinion, he attempted to be evaded by arguments involving too fine distinctions. As G. Sirkar Sastri says in his Hindu Law, page 239 at page 240, the doctrine of the Hindu Law is that 'partition must take place by the desire of a single member, and the others are bound to consent and agree to it. Therefore, the declaration by a member of his desire for partition to the other members, accompanied or followed by conduct evidencing its earnestness, must be sufficient to cause the severance of his interests. That is all that he can do: if the others do not agree, but obstruct his desire, and compel him to continue to live with them for some time as before, they cannot be permitted by both law and equity to prejudice his right, and to gain an advantage by their such wrongful omission. He should thence forward be deemed to live with them in the same manner as a member of a joint family governed by the Dayabhaga, that is to say, as a tenant-in-common and no longer as a joint tenant.'
52. As regards the danger of perjured oral evidence about such declarations and intentions, not only have their Lordships of the Privy Council taken care to lay down in Suraj Narain v. Iqbal Narain 18 Ind. Cas. 30that such intentions must be proved by cogent and clear' evidence, but there is the Legislature which could, by enacting registered documents as necessary to evidence such declarations, obviate that inconvenience. Piecemeal legislation is no doubt not desirable but so long as the generality of the followers of Hindu Law, even in the same province, are not willing to have it ascertained by a commission and codified according to the recommendations of that commission, piecemeal legislation is the only course open to the Legislature.
53. In the result, I would give the following answer to the reference, namely, that a member of a joint Hindu family becomes separated from the other members by the fact of suing them for partition and by the unequivocal declaration made in the plaint in that suit, when such unequivocal declaration has been clearly expressed to the other co-parceners through the Court or otherwise.
Seshagiri Aiyar, J.
54. If the question were not concluded by the latest decision of the Privy Council in Suraj Narain v. Iqbal Narain 17 C.L.J. 288, I would have answered the reference in favour of the appellant. I feel with the learned Chief Justice that it is not competent for us to explain away the decision of their Lordships of the Judicial Committee as suggested by Mr. Krishnaswami Aiyar. The Judicial Commissioner quoted the early Calcutta decisions in his judgment and in the argument before the Privy Council reference was made to some of them. Mr. Krishnaswami Aiyar contended that their Lordships should not be understood as overruling the current of decisions in Madras without even adverting to them. But the question did arise for decision and there was a pronouncement. Their Lordships alone can explain away their judgment, if they did not really intend to decide the question. I, therefore, hold that the question referred to us is concluded by the authority of the Judicial Committee. However, as I feel that the texts of Hindu Law and the authorities in Madras and elsewhere are in favour of the contention of the appellant, I feel bound to state my views at some length on the points raised before us. The question under reference has been argued with great ability on both sides.
55. In my opinion the weight of textual authority is in favour of the appellant's contention. The definition of vibhaga in the Mitakshara gives no indication regarding the mode of effecting a partition. The Saraswati Vilasa has been claimed by both the learned Vakils for their contentions. The chapter commencing with the twenty-second sloka is headed 'what is partition.' The author quotes Baruchi for the position that vibhaga is the division of wealth and of religious duties. He then points out that the definition of Vijnaneswara is rot comprehensive enough to include the division of religious duties, and proceeds in slokas 25 to 27 to deal with the spiritual merits of performing separate religious duties. The conclusion on this sub-head is stated in sloka 28, thus: 'From this it is known that without any formality partition can be effected by mere intention just as the making of an appointed daughter can be effected by mere intention without any formality.' The next topic deals with persons who have wealth to divide. The author says that in such cases partition of wealth must precede the partition of religious duties. In sloka 30, the requisites of the two classes of division are stated, as a result of the previous discussion: Therefore also in the case of those who have no wealth, the separate performance of religious duties with or even without others' consent constitutes a partition of religious duties; but in the case of the rich, partition of wealth takes place.' As pointed out by the learned Chief Justice in the course of the argument, the last clause seems to refer to an actual division of the properties. I feel no hesitation in holding that the introduction of the clause with or even without others' consent' was intended to point out the distinction between the two classes of cases. Having regard to the doubts expressed by Mr. Justice Sadasiva Aiyar during the course of the argument, I examined the Sanskrit verses with some care, and I am clear that in the case of the partition of wealth, the consent of the co-owners is essential. I may also refer to verse 34 which pointedly brings out the difference: 'Here the separate performance of religious duties alone of one's own will without consent of others for a period of ten years constitutes partition.' This sentence would be meaningless if the contention of Mr. Srinivasa Aiyangar is to be accepted. The various slokas to which I have referred show that the author was conscious that in matters which affected the wealth of all the co-owners, their consent must be taken, but where the religious merit is the object aimed at as in the case of the division of religious duties only, the consent of the others is unnecessary.
56. Mr. Srinivasa Aiyangar relied upon placitum 5, Chapter II, of Viramitrodaya, another authority accepted in Southern India. The author is there considering whether the statement of Manu that the brothers should 'assemble together' is mandatory or only directory. His opinion is that it is not a rule of law, because the word assembly will not be apt to describe the meeting of only two brothers. His another reason is: 'Otherwise partition could not take place at the desire of the co-parcener.' This statement, it is argued, declares that in all cases partition can take place at the desire of one of the members. What the author meant to say was that there are instances in which partition can be effected at the desire of one of the members, for example the separate performance of religious duties; and consequently Manu should not be held to have enjoined that whenever partition takes place, the brethren should assemble. I do not think that Viramitrodaya helps the solution of the problem one way or the other.
57. We have, then, the Vyavahara Mayukha which is somewhat enigmatical. The author does not discuss the mode of partitioning wealth. In Section III, placitum 1, he quotes Naradha for the definition of partition and abruptly says in placitum 2: 'Even when there is a total failure of common property, a partition may also then be made, by the mere declaration I am separate from thee'; for a partition merely indicates a state of the mind. Transactions relating to partition are only declaratory of this mental state'. It may be, as suggested by the learned Vakil for the appellant, that the author was only dealing with religious duties; or it may be, as pointed out by Mr. Mandalik in his Hindu Law, that the author was influenced by Jimuta Vahana's opinion. It is worthy of note that in the province where this treatise is the paramount authority, there is no decided case which accepts the view that the partition of property can be effected by a bare declaration on the part of one of the co-owners.
58. Jimuta Vahana is explicit. His view proceeds on the theory that there is no survivorship in a joint family. Since any one parcener is proprietor of his own wealth' sums up the distinction between the two schools of law. I do not propose to embark upon the speculation whether Tajnavalkya and his commentator really laid down that there is survivorship or joint tenancy in a joint family. It is enough to say that the essential characteristics of Hindu Law as understood by the writers of the Benares School are survivorship and representation. So far as a cursory examination of these treatises goes, the idea of survivorship is in entire consonance with the genius of Hindu Law as it is administered in Southern India. The case of the Nambudri Brahmins who follow Makkathayam Law and, incidents of tarwad ownership among Nairs, shows that the principle of survivorship has taken deep root in Southern India. That is not the position of those to whom the Dayabhaga applies. It is, therefore, perfectly clear that Jimuta Vahana's view is inapplicable to the Mitakshara system. Moreover students of Hindu Law must have noticed how laboriously Jimuta Vahana has endeavoured to differ from Vijnaneswara whenever possible. On an examination of textual law my conclusion is that in the Benares School, a mere declaration of intention will not effect a partition among co-owners.
59. Now I go to decided cases. Naturally the Calcutta cases come in for examination first, as it is in them that we meet with the pronouncement that a mere declaration will suffice to effect a division of status, Before dealing with them individually, I wish to make one observation without meaning the slightest disrespect to the eminent Judges who took part in those decisions. The Bengal Judges have to deal with two separate systems of inheritance, the Dayabhaga and the Mitakshara. Both have to be administered to Hindus, and unconsciously the principles of one of the systems of law get mixed up with the other. In Bulakee Lall v. Musammat Indurputtee Kowar 3 W.R. 41, the question we have to decide was not in issue. The point for decision was whether one of the co-sharers who had become divided from the other in interest can revoke a power-of-attorney jointly given by both, to manage their properties. After quoting Storey on Agency, the learned Judges say: 'That the parties are not in a position substantially different from that of a joint Hindu family.' It is difficult to see how such a position is tenable. However that may be, they proceed to apply the Mayukha to the case in question and say: 'And any act or declaration, showing unequivocal intention on the part of any share-holder to hold or enjoy his own share separately, and to renounce all rights upon the shares of his co-parceners, constitutes a complete severance or partition.' This is purely obiter Musammant Vato Koer v. Rowshun Singh 8 W.R. 82 was decided after the well-known case Appovier v. Rama Subba Aiyan 11 M.I.A. 75 was decided by the Judicial Committee. The head-note to this case is not accurate. There was a concurrence of the parceners for dividing the property and petitions for registry were presented to the Revenue Authorities. The substantial argument of the contesting defendants was that there should be a division by metes and bounds. The learned Judges held that Appovier's case was a complete answer to that contention. The same learned Judges decided Debee Pershad v. Phool Koeri 12 W.R. 510. They held that a previous plaint which only sought for a declaration of rights was not sufficient to constitute a divided status, but that if the suit had been one for partition, it would have been different. The second statement was unnecessary for the decision of the case. Some months before this decision was pronounced, a Full Bench had to consider this and other connected questions. Curiously enough, no reference is made in the later case to the opinion of Sir Barnes Peacock to which I shall at once refer.
60. In the Full Bench case Sadabart Prasad v. Foolbash Koer 12 W.R. 1 an undivided Hindu died leaving two widows behind him. His creditors sued the widows for the debt due to them, attached the deceased's share in the joint family property and purchased it in Court auction. The surviving joint member sued to have it declared that the share did not pass to the purchasers by the Court sale. The Full Bench held that the purchaser did not acquire the rights of the deceased owner. There was a further question whether the mortgage of his undivided share created by the deceased was binding on his share. This second question involved the consideration whether the conduct and act of the deceased worked out a divided status. Sir Barnes Peacock says: 'I was at one time disposed to think that as one of several members of a joint family can compel partition of ancestral property against the will of the others (see. Mitakshara, Chapter I, Section 5, verse 8), so he might, without the will of the others, alienate that share to which he would be entitled upon partition; but upon reflection I feel than that opinion cannot be maintained according to the true principles of the Mitakshara Law.' This considered opinion of the Fall Bench must be taken to have overruled all previous decisions to the contrary. Reference may also be made to the interpretation which their Lordships of the Judicial Committee placed on this pronouncement in Madho Pershad v. Mehrban Singh 17 I.A. 194, Two of the Judges who were responsible for the case of Musammat Vato Koer v. Rowshun Singh 8 W.R. 82 also sat in the Full Bench. We next come to the case of Sudaburt Pershad v. Lotf Ali Khan 14 W.R. 339, Mr. Justice Markby in this case does not conceal his disapproval of the ruling of the Full Bench. The case of Sudahurt Pershad v. Lotf Ali Khan 14 W.R. 339 is really a minute of dissent from the Full Bench decision. The same learned Judge reiterated his views in Raghubanund Doss v. Sadhu Churn Doss 3 C.L.R. 534. Here again the pronouncement about the mode of partition was entirely obiter. In Radha Churn Dass v. Kripa Sindhu Dass 4 C.L.R. 428 Sir Richard Garth goes back to the view enunciated in Bulakee Lall v. Musammat Indurputtee Kowar 3 W.R. 41 without adverting to the decision of the Full Bench. On the other hand Mr. Justice Wilson in Tej Protap Singh v. Champa Kalee Koer 12 C.k 96 inclines to the view that there should be either a decree or an agreement to divide. In two very recent cases Bata Krishna Goswami v. Gopal Krishna Goswami 5 C.L.J. 417 and Banwari Lal v. Sheo Sanker Misser 1 Ind. Cas. 670 Mookerjee, J., regards the question as still open. In my opinion, the Calcutta decisions give us no definite guide.
61. In Bombay, as I said before, there is no decision which upholds the Mayukha doctrine that a bare declaration will sever the co-parcenary status. In Moro Vishvanath v. Ganesh Vithal 10 B.H.C.R. 444 the learned Judges speak of a contract to divide Babaji Parshram v. Kashibai 4 B.k 157 goes the length of laying down that even after decree, unless the partition is by metes and bounds, the status is undisturbed. In Murari Vithoji v. Mukund Shivaji Naik Golatkar 15 B. d 201 the learned Judges found 'a tacit agreement of enjoyment according to shares,' although if a declaration was sufficient, it would have been easy to find it. In Mahadew Laxman v. Govind Parashram 14 Bom. L.R. 733 a decree for partition was relied on find not the filing of the plaint. West and Buhler in pages 680 and 681 in dealing with 'will to effect a separation' seem to lay down that the assent of all the co-parceners is necessary to effect a partition. It may, therefore, be safely stated that in the province where the Mayukha is followed, the Courts have never been asked, to hold that a declaration of intention will sever the co-parcenary in regard to joint property.
62. In Madras, the High Court has consistently held that the filing of a plaint does not put an end to the co-parcenary. In Sangili v. Mookan 3 M.L.J. 137 the death of one of the co-parceners after suit and before decree was held not to have affected the undivided status. In Subbaraya Mudali v. Manika Mudali 19 M.k 345 it was laid down that a decree dissolved the co-parcenary notwithstanding the filing of an appeal against it. The learned Judges point out that until decree the co-parcenary continued, In Sudarsanam Maistri v. Narasimhulu Maistri 11 M.L.J. 353 Bashyam Aiyangar, J., expressly dissented from the view of Sir Richard Garth in Radha Churn Dass v. Kripa Sindhu Dass 4 C.L.R. 428 that a mere declaration by one member is sufficient to effect a separation. There are observations to the same effect in Aiyyagari Venkataramayya v. Aiygagari Ramayya (68). In Thandayuthapani Kangiar v. Ragunatha Kangiar 10 Ind. Cas 660: 21 M.L.J. 240 the learned Chief Justice (Wallis, J.,) points out: 'Partition may be effected by consent and in proper cases by decree.' Sankran Nair, J., says that the practice in this, Presidency has always been in accordance with the law as laid down in Subbaraya Mudali v. Manika Mudali 19 M.k 345. I entirely concur with this estimate of the practice obtaining among Hindus governed by the Mitakshara Law. Reference may also be made to Balakrishna Mudaliar v. Raju Mudaliar 16 M.L.T. 610.
63. Before considering the decision of the Judicial Committee on the subject, I shall briefly refer to the views held by the High Court and by the Judicial Committee on certain collateral subjects which are not easily reconcilable with the theory that partition can be effected by a declaration. In all the Courts in India, it is now settled law that a co-parcener cannot by a testamentary disposition or by gift inter vivos dispose of his share of the joint family property. Their Lordships of the Judicial Committee have given their sanction to this position in Lakshman Dada Naik v. Ramchandra Dada Naik 7 C.L.R. 320 In my opinion the denial of this right is not consistent with the hypothesis that a unilateral declaration to sever the status is enough. This view receives support from the decisions which lay down that a disposition by Will or gift will be valid if the consent of the other co-parceners is obtained. See Indar Sahai v. Shiam Bahadur 17 C.L.J. 299 and Parmanandas Jivandas v. Venayek Rao Wassudeo 9 I.A. 86.
64. On the question of the power of a member to alienate for consideration his share of the property, it is somewhat curious that it should be conceded in Madras and Bombay, while it is denied in Bengal. The earlier Bengal decisions enunciating the view that a declaration of intention will sever the joint status, logically require that the co-parcener should have power to dispose of his share. This is apparently Mr. Justice Markby's view. Their Lordships of the Judicial Committee held in Balgobind Das v. Narain Lal 17 Ind. Jur. 425 that an undivided member is not competent to alienate his share in Bengal and in the United Provinces. It is significant that this restriction is said to apply to alienations without the consent of the co-parceners. See also Madho Pershad v. Mehrban Singh 17 I.A. 194. This pronouncement lends further support to the proposition that in dealing with co-parcenary property individual acts or declarations are of no avail, but that they would be valid if assented to by the others interested in the property. There is only one other class of cases to which reference may be made. It has been held in Madras that even after alienating his share the alienor continues to be a member of the joint family. Nanjaya Muduli v. Shanmuga Mudali 22 Ind. Cas. 555 and Maharaja of Bobbili v. Venkataramanjulu Naidu 25 Ind. Cas. 585. These decisions all proceed on the theory accepted in Madras that unilateral act is not sufficient to effect partition.
65. Mr. Krishnaswami Aiyar referred to the analogy of partition among joint tenants. A co-parcenary under the Hindu Law has many features in common with joint tenancy. The principles which apply to the severance of a status of joint tenancy, therefore, deserve consideration
66. It was held in Partriche v. Powlet 2 Atk. 54 that a declaration by one of the tenants will not put an end to the joint tenancy. In In re Wilks, Child v. Bulmer (1891) 3 Ch. 59 it was decided that the presentation of a bill does not arrest survivorship. The filing of a plaint cannot be in a better position. On the other hand, in In re Dodson, Yates v. Morton (1908) 2 Ch. D. 638 it was ruled that a decree would terminate the joint tenancy. See also Freeman on Co-tenancy and Partition, Section 31. I am of opinion that these decisions are applicable to determine the rights of co-parceners in India.
67. In my view it is not right to say that the other members are not entitled to be heard when one of them wishes to separate himself from them. While each individual member has a right to his share the others have a contingent right by survivorship to succeed to it. It may be unreasonable to withhold assent on this ground; but as undoubtedly the right of survivorship exists, in reason there can be no severance of the status unless they consent, or until the Court decrees partition.
68. Now I shall proceed to consider the decisions of the Judicial Committee. If they are clear and definite, whatever may be my view of the law, I am bound to follow them.
69. In the first of the cases decided by the Judicial Committee Rewun Persad v. Mussum-mat Radha Beeby 4 M.I.A. 137 it was held that a bequest to two brothers subject to a life-estate did not create a joint tenancy, but only a tenancy-in-common. Further there was also a finding that the brothers had agreed to divide, although possession did not pass. The second case is that of Appovier v. Rama Subba Aiyan 11 M.I.A. 75. It has always been treated as the leading case on the subject of the mode of effecting a partition. It laid down explicitly that a division by metes and bounds was unnecessary, and that an agreement to divide can be gathered from the acts and conduct of the parties. Their Lordships nowhere intimate in this case that a unilateral declaration will suffice. The case Ram Chunder Dutt v. Chunder Coomar Mundul 13 M.I.A. 181 has given some trouble in understanding it. After reading it over again, I am satisfied that the severance of the status of co-parcenary, among the Ghoses, was not attributed by their Lordships of the Judicial Committee to anything done by one of the brothers without the knowledge and consent of the others. The determination of the joint status and the substitution of co-ownership are not traced to unilateral acts. I do not think this case helps the respondent. In Runjeet Singh v. Kooer Gujraj Singh 1 I.A. 9 the separate enjoyment of the income of particular portions of the family property by each of the members was held not to constitute a divided status. Doorga Persad v. Kundun Koowar 13 B.L.R. 235 follows Approvier v. Rama Subba Aiyan 11 M.I.A. 75 and points out that whether a course of conduct pursued by the members effected a division in interest would depend upon the intention of the parties. The next decision, Joy Narain Giri v. Girish Chunder Myti 5 I.A. 228 requires careful examination. One of the two undivided members who was expelled by the other from the family house sued for a declaration of his right and mesne profits. He obtained a decree in the Courts below and died pending the appeal to the Privy Council. His widow was brought on record and their Lordships confirmed the decree. The second suit was instituted by the surviving member for a declaration that the deceased died undivided and that a Will executed by him was invalid. Two propositions were laid down by their Lordships. Firstly, that the decree, though not in terms one for partition, effectively destroyed the joint estate; secondly, the conduct of the parties showed distinctly that they regarded themselves as divided. The following passage was relied on by Mr. Sreenivasa Aiyangar: 'Their Lordships regard the conduct of Shibpershad Giri, when he left the house in which both he and Joy Narain Giri lived, and withdrew himself from commensality with his cousin, as indicating a fixed determination henceforward to live separately from his cousin, and they treat the fact of his borrowing money for his separate maintenance as well as his making a Will as indicating, at all events, that he himself considered that a separation had taken place. His plaint indicates that he accepts what he terms the expulsion of his cousin from the joint family and claims the share to which he would be entitled after that expulsion, and after a separation.' The reference to the acceptance of the expulsion shows that in the opinion of their Lordships it was necessary that there should be an agreement between the parties. I do not think this decision is any authority for the proposition contended for by the learned Vakil for the respondent. In Chidambaram Chettiar v. Gauri Nachiar 6 I.A. 177: 3 Ind. Jur. 470 there was a preliminary decree for partition and a commissioner was appointed to ascertain the extent of the family property. The plaintiff died before a final decree could be passed. It was contended that the members remained undivided. Their Lordships negatived this contention and said that from the date of the preliminary decree the brothers became separate in estate, 'if they had not previously become so'. It was argued that this last clause pointed to a leaning on the part of their Lordships to the position that the plaint itself effected a partition. On an examination of the original records, it is clear that the reference was to the deposition of the contesting co-parcener in which he said that he had no objection to a division of the properties. Ram Pershad Singh v. Lakhpati Koer 7 C.W.N. 162 only lays down that a decree ascertaining the shares of the members though no division by metes and bounds followed it, effected a partition. In Parbati v. Naunikal Singh 3 Ind. Cas. 195 : 36 I.A. 71 : 13. C.W.N. 983 all the members had jointly petitioned the Collector that their joint property should be held in specific shares and requested him to make separate entries in the Revenue Register to that effect. It was afterwards contended that the members were undivided. Their Lordships of the Judicial Committee held that the petition and the subsequent conduct of the parties afforded unmistakable evidence of an agreement to regard themselves as divided. Throughout this judgment their Lordships speak of the necessity for an agreement whether written or parol.
70. Thus far, there is no decision of the Judicial Committee which lends support to the contention that a unilateral declaration of intention will constitute a severance of interest. Naturally the respondent laid great stress on the latest decision of their Lordships in Suraj Narain v. Iqbal Narain 18 Ind. Cas. 30. As I said at the outset, I cannot accept the suggestion of the appellant's Vakil that the use of the expression may amount to a partition' indicates that their Lordships, without deciding the point, proceeded to deal with the facts, assuming for the sake of argument that the contention was well founded. I was at first inclined to agree with this contention. But on further consideration I think that a decision was given on the point by their Lordships. Whether this should be extended to Madras can be decided only by their Lordships of the Judicial Committee. I agree in the conclusions of the learned Chief Justice and of Mr. Justice Sadasiva Aiyar.