Sadasiva Aiyar, J. — The plaintiff is the appellant. His claim was based on two alternative bases; one was that in 1903 he and his adoptive father the 1st defendant had effected a division of the joint family property under which division he obtained the whole of items 1 to 3 and portions of items 4 to 9 for his share and that the items 10 to 20 were left undivided to be enjoyed in common between himself and his father. He therefore claims a declaration of his title to items 1 to 3 and to defined portions of items 4 to 9 and also partition and separate possession of his share in items 10 to 20. That is the first basis of his claim. In the alternative, he says that “should the court come to the conclusion that the plaintiff and the 1st defendant are members of an undivided family, then the plaintiff claims in the alternative portions of the said properties,” that is, “recovery of his half share of the properties” and so on. The items 1 to 20, I have mentioned are, items in the A. Schedule. (There are also certain allegations and claims made as to the properties in schedule B, C and D which it is unnecessary to set out in detail). The plaintiff also sued for a declaration that the sales effected by the fist defendant in favour of defendants 4 and 9 of certain of those properties are not binding upon the plaintiff or on His share of his properties. The Subordinate Judge who tried the suit gave the following findings: (1) that the plaintiff was validly adopted as son of the 1st defendant; (2) that the plaintiff and the 1st defendant became divided in 1903 or 1904 having been living as divided members since then; (3) that the plaintiff got items 1, 2 and 4 for his share seperately and the 1st defendant obtained items 21 to 26 and that the other items were left in common and that some of the items claimed by some of the contesting defendants did not belong” of them but to the plaintiff and the 1st defendant. On these findings, he awarded possession of items 1 and 2 and the eastern half of the 4th item exclusively to the plaintiff and directed partition of the rest of the items. On appeal by the 4th defendant alone in respect of the lands conveyed to him by the 1st defendant, the District Judge found that the plaintiff and the 1st defendant had not become divided in status in 1903 or 1904 as alleged by the plaintiff and as held by the Court of First Instance, and he found also that the plaintiff and the 1st defendant “are undivided members of a joint family”. (See last sentence in paragraph 8 of the District Judge's judgment dated 14th March 1917) and he remanded the suit to be disposed of according to law in accordance with the above finding. I do not think he inteded to interfere with the findings of the court of First Instance that the plaintiff was the adopted son of the 1st, defendant and that the properties claimed by the 3rd defendant as belonging to him did not belong to him (8th, issue in the case) or the finding on the 9th issue that items 2, 13 and 14 did belong to the plaintiff's family. It cannot be said therefore that the first court disposed of the whole suit upon its finding on the question whether the plaintiff and the 1st defendant had become divided in 1903. I shall therefore at once state my opinion that upon the order of remand, the plaintiff could not have appealed, as it is only where the remand is under O. 41, R. 23 that such an appeal could be preferred. (The expression “disposed of the suit upon a preliminary point” in O. 41, R. 23 means, in my opinion “disposed of the whole suit on the preliminary point alone).”

To proceed, with the history of the case, the Subordinate Judge on the remand found that the alienation made to the 4th defendant under Ex. XIII dated 7th July 1914 was made for the discharge of the 1st defendant's antecedent debts and for other lawful purposes legally binding on the plaintiff and hence dismissed the plaintiff's suit for partition of the properties conveyed to the 4th defendant. It is against that decree that the present second appeal has been preferred.

The first point argued was that notwithstanding the finding of the District Court that the plaintiff and the 1st defendant continued to belong to an undivided family on the date of the first judgment of the District Court, namely 14th March 1917, the plaintiff—appellant was entitled to argue that the finding of fact is wrong because there are certain records which form part of the documentary evidence in this case and which indicate that the plaintiff had become divided in status from the first defendant between December 1913 and February 1914 through the unequivocal declarations made by the plaintiff between those months of an intention to so become divided in status from the first defendant and by the communication of such intention to the 1st defendant. To understand this contention it is necessary to set out the following facts. The plaintiff had brought another suit O.S No. 179 of 1913 against the first defendant for a declaration that the mortgage executed in favour of one Pichiah Chetty by the 1st defendant was not binding on the plaintiff on the ground that the mortgaged property had fallen to him (the plaintiff) in the alleged partition of 1903 or 1904. In the beginning of 1914, he withdrew that suit with liberty to bring a fresh suit (see Exs. IV, IVa, V, Va, VI and VIa, because he was not allowed to amend his plaint in that suit by making an alternative claim for partition on the basis that he and the plaintiff continued to be members of a joint Hindu family.

It is argued that the intention which he expressed to bring a fresh suit for partition when he was not allowed to amend that plaint was an equivocal expression of intention to become divided in status from the date of that petition for amendment or at least from the date of the petition for withdrawal.

The first question which has to be decided is whether the plaintiff can now be allowed to rely on these facts as a ground of attack against the finding of the District Court's first Judgment that the parties continued as members of an undivided family. These proceedings between December 1913 and February 1914 are not relied on in the plaint as having effected a division in status. The only fact mentioned in the plaint as having effected a division in status was the alleged partition of 1903 or 1904. The 17th paragraph of the plaint says “Should the Court come to the conclusion that the plaintiff and the 1st defendant were not divided in status” (that is, at the time of suit) “then etc.” It was contended that the facts showing the division of status in the beginning of 1914 are all mentioned in the present plaint. The fact that he wanted to amend the plaint in the former suit and to convert it into a suit for partition and that the expressed an intention to bring a fresh suit for partition and wanted liberty to so bring a fresh suit are not expressly mentioned any where in the present plaint. It is only generally set down in paragraph 11 of the plaint “owing to some technical defects the plaintiff withdrew the same” (that is the former suit) “in February 1914 with permission to being fresh suit.” As pointed out by the District Court, the plaintiff did not set up the proceedings in the former suit as effecting a division in status through unequivocal expressions on his part of an intention to so become divided in status. Nor did he set up this contention when the case was argued in appeal before the District Court on the first occasion and he did not even mention it in his grounds of the appeal to the District Court filed against the second decision of the Subordinate Judge. Under 41, R. 33 the appellate Court is not bound to consider a contention not put forward in the grounds of appeal. No doubt the appellate Court is not confined to such grounds of appeal and is competent to take up other grounds, especially a question of law if it is expedient to do so for dealing out substantial justice or to prevent further litigation etc. Even then it ought not (ordinarily) to take up any fresh ground the decision of which depended upon questions of fact which have not been gone into in the Court of first instance and on which either party had not been given opportunity to adduce full” evidence. The decision of the question whether the allegations in the petitions for amendment and for withdrawal presented in the former suit indicated an unequivocal and final intention on the plaintiff's part to become divided in status from 1st defendant cannot at all be said to be free from difficulty and it cannot also be said that it is impossible for any facts to exist between the date of those allegations of plaintiff and the institution of the present suit the proof on which facts by the defendants would negative such an intention on the plaintiff's part. It is only (1) where there can be no reasonable doubt on the record that the evidence on the new point raised had been completely given on both sides (2) that the decision on the new point is a pure question of law and (3) that it is expedient in the interests of justice to consider and decide it though it was not mentioned in the memo of appeal to the Lower Appellate Court that this Court in Second Appeal would be justified in taking up such a question for decision. Mr. Govindaraghava Aiyar relied on the wide language used in some decisions for his contention that the High Court is bound to decide new contentions of law (even contentions not involving questions of limitation) in Second Appeal. 1 do not think that by those observations it was intended to lay down that whether it was expedient and just to allow such new points to be taken up or not the Court is bound to so allow it to be taken.

It has, no doubt, been held that the bringing of a suit is an Unequivocal declaration of intention to be divided in status. Even that has not been unreservedly accepted by Mr. Justice Kumaraswami Sastri in Palaniammal v. Muthuvenkatachala Maniagarar(1). The learned Chief Justice also says “I do not understand this ruling” that is the ruling of Their Lordships of the Privy Council in Girja Bai v. Sadashia Dhundiraj(2) ‘to mean that the effect of filing such a plaint is necessarily final.” Mr. Justice Kumarsaswami Sastriar even goes further and says” Assuming the mere filing of a plaint is sufficient to sever the status of the co-parcener it seems to me that till a decree is passed in that suit, it is open to the plaintiff to change his mind and to withdraw the suit so as to leave him in the same position as if no suit had been filed. I can find nothing either in Hindu Law Orin the decided cases to countenance the view that a mere expression of an intention to separate is irrevocable.” Having regard to those observations, I cannot say that the intention to bring a suit for partition expressed in the petition for withdrawal or the mere application for amendment of the plaint in the former suit so as to convert it into a suit for partition is both an unequivocally and a finally expressed intention to become divided in status. Unless on the admitted facts and on the records the question has without any reasonable doubt to be decided in favour of the appellant, the court is not justified in taking up the new point unless it is necessary in the interests of justice. Assuming however that the proceedings in the former suit already referred to did effect severance of status between the plaintiff and the defendant in February 1914, was it expedient in the interest of justice and would the decision of that point alone without the decision of other questions of fact which could be raised by the 4th defendant have been sufficient for the purpose of deciding the appeal? It seems to me that if the 4th defendant was bona fide purchaser for value having no notice of the plaintiff's petitions in the former suit he was entitled to treat the father 1st defendant as having the power to sell the property for the antecedent debts of the father and other lawful purposes so as to bind the plaintiff (see as to the principle of jurisprudence on which third persons are protected in dealing with persons vested with apparent authority the cessation of which powers has not been brought to the notice of third persons the provisions of Sects. 208 and 264 of the Contract Act). If the plaintiff had relied in the first Court on those proceedings, the 4th defendant could have set up in his written statement or during the trial that he did not know of this declaration of intention relied upon by the plaintiff as effecting a division of status and then there would have been an issue as to whether the 4th defendant had notice of the division of status. His statement in his written statement that there was a former suit between the father and the son does not indicate that he knew of all the petitions filed in that suit. In fact in the cross-examination he says; “I asked plaintiff if I could take sale. He told me “Do as you like. Let the property go to dogs. 1 will not say anything.” In his written statement, he says that some proceedings took place in the former suit, but he does not state that he had the knowledge and notice of those proceedings at the time when he took the sale deed. On the whole, I think that the Lower Appellate Court was not bound to have considered the new contention not put forward in the memorandum of grounds of appeal.

Further, as I said, the consideration of the allegations in the two petitions of amendment and withdrawal do not necessarily lead to the conclusion that there was such an unequivocal and final, that is, irrevocable declaration as to constitute division of status between the father and the son. The finding of fact therefore, by the District Court that there was no such division has to be accepted in Second Appeal.

As regards the alienation to the 4th defendant, the Subordinate Judge who first dealt with the suit no doubt held that the 4th defendant was not a bona fide purchaser. But the Subordinate Judge who dealt with the suit after remand says in paragraph 13 of his judgment that the 4th defendant made bona fide and sufficient enquiries, that the sale to 4th defendant was for proper purposes and for an adequate price and that the 4th defendant believed in the alleged necessity for the sale.

In the result I would dismiss the Second Appeal with 4th defendant's costs.

Spencer, J.—The plaintiff brought this suit in November 1914 on the basis of an alleged partition in 1903 to declare certain alienations made by his adoptive father invalid, and in the alternative if that partition should be found against, to obtain a decree for partition of his share free of all encumbrance.

The District Judge found that there had been no partition in 1903, and after remand to the Court of first instance, the plaintiff eventually got a decree for partition excluding the items sold by his adoptive father on July 7, 1914, that is, between the date of his prior suit O. S. No. 179 of 1913, and the institution of this suit in November 1914. The plaintiff appeals against the decision that the alienation in question is binding on him, and he relies on the circumstance that his prior suit (O. S. No. 179 of 1913) instituted on the 6th November 1913 and withdrawn on the 26th February 1914 created a division of status between him and his father, and on the necessary consequence of that division, namely that his father was precluded from thereafter disposing of the son's interest in the ancestral property. But beyond a brief mention of the prior suit in his plaint, the plaintiff did not rely on the legal inference to be drawn from its institution, namely, that it was the expression of an unequivocal desire on his part for separation which by law effected a division of a status. I would not lay stress on this omission as debarring him from raising this point of law at this stage, but as part of the plaintiff's conduct as a member of an undivided family desiring to become divided it strikes me as significant. O. S. No. 179 of 1913 was in its inception a suit to declare a mortgage entered into by the plaintiff's adoptive father and his uncle's wife to be an invalid transaction. The plaintiff applied through a petition, Exhibit V, to amend the plaint in that suit asking to be allowed to establish his right to a partition in case the court should be of opinion that there had been no partition hitherto bet ween the plaintiff and the 1st defendant. Then on the 19th January 1914 by a petition, Exhibit IV, he withdrew his previous petition to amend the plaint stating that he did not press the question of division of the family properties and that he would be satisfied with a decision that the mortgage deed was not binding on his “undivided” share. Next he applied on the 26th February 1914 through Ex. VI for leave to withdraw the suit with liberty to file a fresh suit for partition. The obvious inference to be drawn from these acts is that the plaintiff desired to postpone the date of separation to such other time as it might be convenient to renew his application. In Suraj Narain v. Iqbal Narain the Privy Council lay down that what may amount to a separation and what conduct on the part of some of the members may lead to a 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 his intention to separate himself and to enjoy his share in severalty may amount to a separation, but to have that effect, the intention must be unequivocal and clearly expressed. In Kawal Nain v. Budh Singh their Lordships rejected an argument that the dismissal of a suit for partition indicated that the family remained joint when the suit failed on the ground that there was no good cause of action for partition on the date when the cause of action was regarded as having accrued. Withdrawal of a suit stands on a very different footing from dismissal, because the latter is not the result of any voluntary action on the part of the plaintiff whereas the withdrawal is. T am therefore of opinion that the conduct of the plaintiff in instituting the former suit and in applying to get the plaint amended and thereafter in withdrawing his petition and withdrawing his suit did not constitute such an unambiguous expression of intention as would amount to a separation. The finding of the District Judge in this case before remand that there was no division in the year 1903 being one of fact is final and cannot now be questioned. The appellant has failed to satisfy me that what occurred after 1903 amounted in law to a severance of status.

The result is that the sale under Ex.XIII was effected during a time when the plaintiff was a member of the undivided family, and as it was for the purpose of discharging antecedent debts it cannot now be impugned. I agree that the Second Appeal should be dismissed with costs.

K.V.SAppeal dismissed.