1. This appeal raises some interesting and important points of Hindu Law. It concerns a joint. Hindu family governed by the Mitakshara School of Law. Prior to 1927 the family consisted of Chunilal Johury, whose wife Dhanabati Bibi is the present appellant, and his son Motilal, whose wife Jasbati was a defendant in the suit, but has not appealed. Between 1927 and 1929 Chunilal and Motilal mortgaged the family property in order to raise money. In 1929 there was an addition to the family when Narendra Singh, Motilal's eldest son, was born. In 1930 Motilal filed a suit against Chunilal, Narendra and Dhanabati for partition. In 1931 Basanta Singh was born to Motilal and he was added as a defendant in the partition suit. In 1931 the mortgagees instituted a suit against Chunilal, Motilal, Narendra and Basant Singh to enforce their mortgage. Dhanabati acted as guardian-ad-litem for the two infants, and in July 1931 a consent decree and an order for sale was made. In August 1931 a preliminary decree was passed by consent in the partition suit, and a declaration made that the plaintiff Motilal was entitled to one equal ninth part of the family property, Chunilal to three equal ninth parts, Dhanabati to three equal ninth parts and the infants Narendra and Basanta each to one equal ninth part. It was further ordered inter alia that the Commissioner should partition the property by metes and bounds and allot her share to Dhanabati to be held and enjoyed by her in severalty as a Hindu wife under the Mitakshara School of Hindu Law. But no further step has yet been taken in the suit. Soon after this Dhanabati began to assert that she had rights in the property adverse to the mortgagees and in May 1932 an order was made in the mortgage suit without prejudice to her alleged rights. In July 1932 Chunilal and Motilal were adjudged insolvents. In February 1933 the mortgagees applied inter alia to have Dhanabati and Jasbati added as parties in the mortgage suit; this they resisted, and that part of the application was dismissed with costs.
2. Thereupon the present suit was instituted in March 1933. In the plaint as originally filed, the plaintiffs simply set out the above facts and stated that they had no knowledge of the fact that Dhanabati was a party to the partition suit until after they had obtained their mortgage decree, and that they did not admit the validity of the alleged partition or that it concerned them as secured creditors. This was inaccurate because Dhanabati referred to the partition suit in an affidavit sworn in the mortgage suit in June 1931. Further, they said that they had been advised to institute the present suit in order to enable the female defendants to redeem the mortgages, if the Court was of opinion that the mortgage decree was not binding on them. They asked that the present suit be treated as supplementary to the mortgage suit, and for a declaration that the decree in that suit was binding on the defendants,; and in the alternative for a mortgage decree.
3. As filed, the plaint does not appear to have disclosed any cause of action, but during the hearing it was by leave amended by adding a statement that the partition was made, with the object of creating complications and of saving 1/3rd of the property by having the same allotted to Dhanabati. Further, the, plaintiffs stated that Dhanabati and Jasbati were falsely asserting that the mortgages and, the proceedings and decree in the mortgage suit were illegal and not binding on them, and that they were colluding with Chunilal and Motilal to defeat the plaintiffs' claims, and they asked in addition for a declaration that the mortgages and proceedings and decree were binding on all the defendants and in particular upon the defendants Dhanabati and Jasbati. In her written statement Dhanabati denied that the suit was maintainable, and that the Johuri defendants were members of a joint family after the date of the institution of the partition suit. Further she denied that the loans were for legal necessity, and asserted that the plaintiffs having already obtained a decree by consent on the alleged mortgages were precluded from instituting the present suit or from obtaining any relief thereby.
4. Of the issues raised at the trial only the following need be considered: 1. Is the suit maintainable having regard to Section 42, Specific Relief Act? 2. Was there any joint family after the institution of the partition suit? 3. Had the plaintiff's knowledge that Dhanabati was a party to the partition suit
5. The first issue is of minor importance. The learned Judge decided it in favour of the plaintiffs and made a declaration in the form claimed in the plaint. In my opinion such a declaration is not in accordance with the provisions of Section 42, Specific Relief Act, which provides that any person entitled to any legal character or to any right as to any property, may institute a suit against any persons denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled. A declaration that the plaintiffs were entitled to sell the mortgaged property free from any right of redemption would have been in accordance with the section, but not that the mortgages and proceedings and decree were binding upon the defendants; they had not been made parties to the mortgage suit, and as the learned Judge decided that the defendants had no interest in the property, such a declaration could hardly be justified. However it is only a matter of form, and this Court could make a decree in the proper form, if satisfied that the plaintiffs were entitled to it.
6. The learned Judge considered issues 2 and 3 together and decided, on the authority of the case of Sheo Dyal v. Judoonath (1868) 9 WR 61 and other cases such as Raoji Bhikali v. Anaunt Lakshman 1918 Bom 175, which followed it, that though according to the Mitakshara-School of Law, the mother or grand-mother is entitled to a share when sons or grandsons divide the family estate, she cannot be recognized as the owner of such share until the division is actually made, that there is no authority for the suggestion that Dhanabati's position and status a rights were altered by the mere fact of the institution of the partition suit, and that the authorities show that at the time when the mortgage suit was instituted she had no rights except a right to maintenance. Consequently, he held that the question whether or not the institution of the partition suit amounted to a severance affecting the status of the joint family was immaterial, because all persons who had any actual interest in the property were made parties to the mortgage suit, and Dhanabati was not a necessary party because she had no interest. The law upon this subject has been very ably and exhaustively discussed by counsel on both sides, and all the relevant cases have been cited. These decisions cannot easily be reconciled, and on the view which I have formed, it would serve no useful purpose to discuss them seriatim. In my belief the discrepancies between them are due mainly to a failure to observe the distinctions and differences which exist between the Dayabhaga and Mitakshara Schools of law.
7. It will be enough to say that, in my opinion, the judgment of the late Dwarkanath Mitter, J., in Sheo Dyal v. Judoonath (1868) 9 WR 61 so far as he was of opinion that
division by metes and bounds was necessary to constitute partition under the Mitakshara and that under the Hindu law two things at least are necessary to constitute partition: the shares must be defined and there must be distinct and independent enjoyment of those shares,
was contrary to the earlier view expressed in Vato Koer v. Rowshum Singh (1867) 8 WR 82 and to the judgment of the Privy Council in Appovier v. Rama Subba Aiyan (1866) 11 MIA 75 and was definitely overruled by the decision of the Privy Council in Balkishen Das v. Ram Narain Sahu (1903) 30 Cal 738 and that the law upon this subject has been correctly, concisely and comprehensively stated by that learned Hindu lawyer, the late Sir Dinshaw Mulla in his 'Principles of Hindu Law,' Edn.7, Para. 322, at p. 390, and I cannot hope to improve upon the language of his statement.
8. It is founded upon the decisions in Appovier v. Rama Subba Aiyan (1866) 11 MIA 75, Ram Pershad v. Lakhpati (1903) 30 Cal 231, Sheodan v. Balkaran 1921 All 337 and Balkishen Das v. Ram Narain Sahu (1903) 30 Cal 738 and especially upon the judgment of Lord Westbury in Appovier v. Rama Subba Aiyan (1866) 11 MIA 75 and is as follows:
According to the true notion of an undivided Mitakshara family, no individual member of that family, whilst it remains undivided, can predicate of the joint property, that he, that particular member, has a certain definite share, one-third or one-fourth. Partition, according to that law, consists in a numerical division of the property, in other words, it consists in defining the shares of the coparceners in the joint property; an actual division of the property by metes and bounds is not necessary. Once the shares are defined, whether by an agreement between the parties or otherwise, the partition is complete. After the shares are so defined, the parties may divide the property by metes and bounds, or they may continue to live together and enjoy the property in common as before. But whether they do the one or the other, it affects only the mode of enjoyment, but not the tenure of the property. The property ceases to be joint immediately the shares are defined, and thenceforth the parties hold the property as tenants-in-common.
9. The distinction between the Dayabhaga and Mitakshara Schools is stated in para. 347 and at p. 414 as follows:
According to the Dayabhaga law, on the other hand, each coparcener has, even whilst the family remains undivided, a certain definite share in the joint property, of which he is the absolute owner. The property is held in defined shares, though the possession is the joint possession of the whole family. Partition, according to that law, consists in separating the shares of the coparceners, and assigning to them specific portions of the property.' As under the Mitakshara law, so under the Dayabhaga law, the true test of a partition lies in the intention of the parties to separate (Section 326). In the case of a joint Mitakshara family that intention may be manifested by a mere agreement between the coparceners to hold and enjoy the property in defined shares as separate owners without an actual division of the property by metes and bounds (Section 326). In the case however of a joint 'Dayabhaga family, such an agreement as aforesaid is not a sufficient manifestation of the indention to separate; for according to the Dayabhaga law the joint property is held, even while the family remains joint, in defined and specific shares. To constitute a partition according to the Dayabhaga law, there must be something more than such an agreement. There must be a separation of the shares and the assignment to each coparcener of specific portions of the joint property.
10. In the present case, the question whether there has been a partition or not is of vital importance, because on partition between her husband and his son, the wife became entitled to a share in the joint property, equal to that of a son, and to hold and enjoy that share separately even from her husband, though she cannot herself demand a partition, Dulav Koeri v. Dwarkanath (1905), 32 Cal and Purna Bibee v. Radha Kissen (1904) 31 Cal.
11. That the dictum of Dwarkanath Mitter, J., in Sheo Dyal v. Judoonath (1868) 9 WR 61 has been overruled was recognized by Mookerjee, J., in Bata Krishna v. Gopal Krishna (1907) 5 CLJ 417, and that this dictum and all decisions founded upon it are no longer good law is accepted unreservedly as the correct view in Gour's Hindu Code, Edn. 2, para. 1474, at p. 664 and in Sastris' Hindu Law, Edn. 7 at p. 523. According to the Mitakshara School of Law, 'partition' is a severance of joint status, and thus is a matter of individual volition. All that is necessary is definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. It is immaterial whether the other members consent. The intention to separate may be indicated either by explicit declaration or by conduct, and the institution of a suit for partition is a sufficient indication, Kawal Nain v. Budh Singh 1917 PC 39, Sri Ranga Thathachariar v. Srinivasa Thathachariar 1927 Mad 801. A decree may be necessary for working out the results of the severance and for allotting definite shares, but the status becomes separate by the assertion of a right to separate whether the suit proceeds to judgment or not: Girja Bai v. Sadashiv 1916 PC 104. The result is that Dhanabati, by reason of the institution of the partition suit, had a right to claim her share Ganesh Devi v. Darshan Singh 1920 Lah 224, and therefore had a beneficial interest in the property mortgaged and a right of redemption, (Section 9, T.P. Act, Ghose on 'Mortgage' Edn. 5, Vol. 1, p. 254) and was a necessary party in the mortgage suit, (O. 34, Rule 1, Civil P.C.). Still more so was this the position after the shares had been defined in the preliminary decree for partition. Up to now she has not had any opportunity of contesting either the validity of the mortgages or the terms of compromise, yet the plaintiff claims a declaration to the effect that she has lost her equity of redemption and her right to an account though no suit has been brought against her. In my opinion, the plaintiffs were not entitled to the declarations which they claimed and which were made in their favour. Consequently, the decree must be set aside, and this appeal must be allowed with costs both here and below.
12. I agree.