1. This is an appeal preferred by the Defendants from a preliminary decree in a suit for partition brought by the respondents. The plaintiffs are the sons of the first defendant by his first wife Gangamma. The second defendant is his son by his second wife Kausalyamma. There is no dispute that the parties were members of a Hindu undivided family on the date of suit each being entitled to a 1/4th share in the family properties. The dispute in the appeal relates to the existence and the divisibility of certain assets and the provisions to be made for the maintenance and marriage expenses of the the two unmarried daughters of the first defendant, one of whom was born during the pendency of the suit.
2. The main contention of the appellants relates to the claim put forward by the first defendant to the exclusive ownership of certain lands, about 12 acres in extent which are now worth a substantial amount. This item was allotted along with other items of family properties to the first defendant's share at a partition between himself and his younger brother Ramasami which was completed in 1935. The partition was effected by means of an award (Ex. D-3) of certain arbitrators to whom the dispute between the brothers was referred in October, 1932. After dividing the other family properties in equal shares, the arbitrators allotted the item referred to above (which was described in the schedule F attached to the award) to the share of the first defendant as his Jyeshtabhagam.
3. The award recites.
As out of individuals Nos. 1 and 2, individual No. 1 (i.e., 1st defendant) is elder and the first born and as individual No. 1 mainly carried on the affairs and much improved the property, we have settled the lands of the value of Rs. 3,035 mentioned in the F Schedule on individual No. 1 as Jyestabhagam and on account of their caste customs and consent given in the panchayathi agreement executed by individuals Nos. 1 and 2, we have agreed to the rate and directed the same to be given.
4. The first defendant claimed in the Court below that this item must be treated as his self-acquired or separate property not liable to be divided as between himself and his sons including the plaintiffs. The learned Judge below disallowed the claim. Mr. Y. Suryanarayana, learned Counsel for the appellants, did not, however, contend that the entire property was the separate property of the first defendant. He urged that, so far as Ramasami's half share in the property was concerned, there was in effect a gift of it by him to the first defendant who must accordingly be regarded as having acquired that share in his own independent right as a donee from Ramasami and it was not, therefore a divisible asset of the family. The argument was put thus : The agreement by the first defendant and Ramasami to appoint arbitrators to partition their family properties effected a severance of the joint status of the family, according to the decisions of the Privy Council in Syed Kasam v. Jorawar Singh (1922) 43 M.L.J. 676 : L.R. 49 I.A. 358 : I.L.R. 50 Cal. 84 (P.C.) and Harikishan Singh v. Partap Singh (1938) 2 M.L.J. 234 (P.C.) and each brother thus became entitled to a separated half share in all the family properties. When the properties were subsequently divided by metes and bounds under the award of arbitrators, the allotment of the entire item now in question, in which Ramasami had one half-share, exclusively to the first defendant as his Jyeshtabagam in excess of what was legitimately due to him operated as a gift of Ramasami's half share in the item, and such share must, therefore be regarded as his separate property in which his sons can claim no interest. The argument proceeds, in our opinion, on a misconception of the true nature of a partition arrangement under which each co-owner gets a specific property in lieu of his rights in all the joint properties; that is to say each co-sharer renounces his rights in the other common properties in consideration of his getting exclusive right to and possession of specific properties in which the other co-owners renounce their rights. It is thus a renunciation of mutual rights and does not involve any transfer by one cosharer of his interest in the properties to the others. That is why it has been held that a partition can be effected orally and without any registered instrument though it may affect immoveable properties of the value of one hundred rupees or more. In Gyannessa v. Mobarakannessa (1897) I.L.R. 25 Cal. 210 it was argued that a partition of immoveable properties involved an exchange of rights in such properties between the co-owners and could therefore be validly effected only by a registered instrument as provided by Section 118 of Transfer of Property Act. The Court repelled the argument pointing out that the transaction involved nothing more than one co-owner taking a specific property in lieu of his undivided share in several properties. On this view of the transaction which, in our opinion is the true view, the allotment at a partition of a Jyeshtabhagam to the eldest brother means, as the term implies, no more than giving him a larger share than would strictly be due to him and involves no gift by the younger brother or brothers. Indeed, the terms of the award, Ex. D-3, extracted above do not admit of the transaction being interpreted as a gift by Ramasami of his share of the property allotted to the first defendant. It was the arbitrators who " settled " the allotment and " directed the same to be given". There are no words of conveyance by Ramasami who has signed the instrument only as a " witness".
5. In such circumstances, we are of opinion that the first defendant held the property in dispute, as he unquestionably held the other properties allotted to him, as ancestral family property to which his sons are entitled to share.
6. Reference was made by Mr. Suryanarayana to a decision of Venkataramana Rao, J., reported in Subbarao v. Subbarao (1936) 71 M.L.J. 419. There the allotment of a certain property as Jyeshtabhagam at a family partition was attacked subsequently by one of the brothers who consented to such allotment and his son who was a minor at the time. It was argued that the allotment was virtually an alienation by the father without any necessity and would be tantamount to a gift and therefore not binding on his son. The learned Judge rejected the argument observing that, in his opinion, "it is not accurate to regard partition as an alienation". He proceeded to dis-tinguish Venkata Reddi v. Kuppa Reddi (1918) 8 L.W. 400 thus:
No doubt in Venkata Reddi v. Kuppa Reddi (1918) 8 L.W. 400 where a mother represented her minor sons at a partition the allotment of an extra share to the eldest member of the family was held not binding on the minor sons and it was held that the transaction may well be regarded as a gift....The position of the father is entirely different.
7. A reference to Venkata Reddi v. Kuppa Reddi (1918) 8 L.W. 400 however shows that the words we have italicised do not correctly state the decision in that case. All that the learned Judge there held was that:
The act of the mother in consenting to give an extra share to the managing member is not binding on the plaintiffs. The old idea of Jyeshtabhagam has now become obsolete and conse-quently the consent of the mother to Ramasami Reddi taking an extra share could not prejudicially affect the plaintiff.
8. The theory of implied gift was brought in to repel an argument that the extra share was thrown by the eldest brother into the hotch-pot so as to entitle the junior branch, with whom he was living in commensality, to a share therein. Such a transaction, it was observed, could only be regarded as a gift of half of the extra share to the junior branch and must be in writing and registered. Thus neither Subba Rao v. Subbarao (1936) 71 M.L.J. 419 nor Venkata Reddi v. Kuppa Reddi (1918) 8 L.W. 400 is of any assistance to the first defendant.
9. As regards the provision to be made for the two unmarried daughters of the first defendant, the Court below has directed a sum of Rs. 3,000 for each of them to be set apart out of the joint family assets. As already stated, the elder daughter was born before suit and is now about seven years old and the younger on the 13th May, 1944, pending suit. The first defendant claims that both of them are also entitled to maintenance out of the family properties and provision should be made in that behalf in the decree. Though it appears from the written statement of the defendants that a claim for the marriage expenses and maintenance was made on behalf of the first daughter who alone had then been born, the claim for maintenance does not appear to have been pressed at the trial, for no evidence has been adduced as regards the proper rate to be allowed and nothing is said about it in the judgment of the lower Court. There was some discussion before us as to whether during the father's lifetime the son's share on partition is liable for the maintenance of the father's daughter. Reliance was placed for the defendants on the Full Bench decision in Subbayya v. Ananta Ramayya (1928) 57 M.L.J. 826 : I.L.R. 53 Mad. 84 (F.B.) which does seem to support the claim. It was, however, pointed out for the plaintiffs that the actual decision in the case related only to marriage expenses as no claim for maintenance was made or allowed. We consider it unnecessary to go into the question as we are of opinion that the first defendant should not be allowed to revive the claim at this stage, not having pressed the same in the Court below, as we do not have the advantage of a finding by that Court on the point. It would no doubt be open to the daughters who are not parties to these proceedings to put forward their claim in a separate suit of their own if they are so advised.
10. In the memorandum of cross-objections the plaintiffs have raised an objection to the marriage allowance awarded for the younger daughter. Mr. Balapara meswari Rao contends that, inasmuch as the plaintiffs who are minors suing by their maternal uncle as their next friend, must be deemed to have become divided in status from the date of the plaint as the suit has been found to be beneficial to them in the circumstances of the case (See Rangasayi v. Nagarathnamma (1933) 65 M.L.J. 630 : I.L.R. 57 Mad. 95 (F.B.)), the younger daughter who was born more than a year after the suit was instituted can have no legal claim against the plaintiffs' share of the family properties for her marriage expenses. Learned Counsel has submitted that an unmarried daughter's claim for marriage expenses which, according to the reasoning of the majority Judges in Subbayya v. Ananta Ramayya (1928) 57 M.L.J. 826 : I.L.R. 53 Mad. 84 (F.B.) already referred to, is traceable to her now obsolete right to a share in the family properties, cannot stand on a higher footing than the claim of the son born subsequent to a division in the family. This contention is, in our opinion, correct and must prevail. Ramesam, J., who delivered the leading judgment in the case referred to above observed:
It seems to me that in the early law both the rights of the sons and the daughters were imper-fect rights of the property which cannot be materialized by compelling partition against the wishes of the father, but whereas the sons' right gradually developed into a right to compel partition, the daughters' right first became a right to compel partition against the brothers only and not against the father, and latterly degenerated into merely a right to maintenance and marriage expenses.
* * * I therefore infer that the right of the daughter for marriage expenses and for maintenance is a right over the joint-family property of the father and the brothers, and, though during the father's lifetime she cannot enforce such right in the form of a partition because of placitum 14 of the Mitakshara, still if the father is willing to exercise his discretion in favour of the daughter by giving something towards her marriage expenses, the joint-family property is liable towards such expenses.
Reilly, J.
11. Concurred in that view, while Jackson, J., dissenting held that at a partition between the father and the son, the daughter had no claim on the sons' share for her maintenance and marriage expenses. But even according to the majority of the Judges who upheld the daughter's claim, it rests on her right to participate in the joint family properties, and a daughter born after disruption of, the joint status can have no such right any more than a son born after partition. It follows that a claim for the marriage expenses of the second daughter is unsustainable and must be rejected.
12. As regards the provision made by the lower. Court for the marriage expenses of the elder daughter, Mr. Balaparameswari Rao submitted that the proper way of providing for such expenses was to fix the amount and to declare a charge for a proportionate share of such amount on the properties allotted to the plaintiff under the partition decree, and not to direct a payment of the same out of the family assets as was done by the lower Court. He drew attention in this connection to the similar provision made in Subbayya v. Ananta Ramayya (1928) 57 M.L.J. 826 : I.L.R. 53 Mad. 84 (F.B.) already referred to where Ramesam J., observed:
provided we safeguard the rights of parties, there is no harm in not actually setting apart the amount. It may be that the marriage may never come off for reasons which need not be suggested. It is enough to fix a maximum limit for the expenses of marriage and to make it a charge on one of the items of the plaintiff's property for one-third share.
13. We agree that provision for the marriage expenses of the girl who is only seven years old should be made in this form and not by the setting apart of the amount in cash. The decree will be modified accordingly.
14. Their Lordships after discussing the evidence concluded as follows:
The appeal and the memorandum of Objections are allowed to the extent indicated above, and the decrees of the Court below will be modified accordingly.
15. As regards costs, we direct the appellants to pay costs in the appeal and 3/4th costs in the Memorandum of Objections. The order as to costs in the lower Court will stand.