The plaintiffs claim property conveyed to the 5th defendant by her husband which she says was allotted to him on partition. The Lower Appellate Court dealing with the case before the Full Bench decision in Soundararajan v. Arunachalam Chetty came to the conclusion that enough was not proved to satisfy the tests till then accepted in such a case.
We have decided before disposing of the case to call for a finding on the evidence on record as to whether:—
(1) there was a division in status.
(2) a division of the properties binding on the minors and if so,
(3) whether the plaint properties fell to the share of the 5th defendant's husband. The findings should be submitted in six weeks and seven days will be allowed for filing objections.
FINDINGS.
The Subordinate Judge found on the third and the second issues that there was no division of properties and that the plaint properties did not fall to the share of the 5th defendant, but that if there was a division, it would be binding on the minor.
Issue I.—The question is whether there was division in status. The Full Bench case of Soundararajan v. Arunachalam Chetty would go to show that a clear and unambiguous declaration by one co-parcener to become divided in status is enough to create a division in status though it is unilateral and is not consented to by the other members of his co-parcenary. The question in the present case is whether there is such division in status with 1st defendant and his late elder brother Seshayya, though the actual division set up in the plaint has been held not proved. The Privy Council case reported at 37 Indian cases, page 321 lays down that this declaration of intention to become divided may be either by express communication to the other co-parceners or it may be inferred from the conduct of the co-parcener. In the present case, there is no evidence that 5th defendant's husband late Seshayya, expressly informed the 1st defendant, his minor brother, of his clear intention to remain divided in status. In the pattas, Seshayya himself is shown as the guardian of his minor brother, the 1st defendant. Rattamma, the mother and guardian of 1st defendant, is alive. Plaintiffs have not shown that, during Seshayya's lifetime, either she or any one else had been constituted the guardian of the minor defendant nor that late Seshayya informed either the minor 1st defendant or any guardian on his behalf of his definite intention to remain divided in status. The appellants contend that, in his registered sale-deeds, Exhibits C and D, late Seshayya had clearly expressed that there had been already a division and that in such division, the properties recited therein had fallen to his share. As we have already seen, as a matter of fact, there has been no actual division of the family properties as alleged by the plaintiffs, Nevertheless, the appellant's pleader contends that the effect of the execution of these two sale-deeds by late Seshayya with the declarations about division therein stated is sufficient to create a division in status between him and his brother. 1st defendant is not a party to either of these two documents nor have plaintiffs shown that 1st defendant or his guardian was informed of the recitals about division in these documents during the lifetime of Seshayya. Plaintiff's witnesses have been shown to be discrepent and unreliable in their evidence about the alleged division. I cannot, therefore, credit them when they say that 1st defendant and late Seshayya were living separately. On the other hand, as we have already seen, the house they live in has only one doorway even now, as P. W. 2 would depose and till Seshayya's death the cist on all the family lands was paid by Seshayya alone. Thus, apart from the mere execution of the sale-deeds, Exhibits C and D, to which 1st defendant was not a party, nothing else has been shown in the conduct of Seshayya to prove a clear and unambiguous intention to separate in status. On issue 1, I would, therefore, find that a division in status between 1st defendant and his brother late Seshayya, has not been established.
[This Second Appeal came on for final hearing after the return of the findings of the Lower Appellate Court upon the issues referred by this Court for trial, on 21st September 1917].
Messrs. T. Prakasam and P. Chenchiah for the Appellants.
Mr. P. Narayanamurthi for the Respondents.
JUDGMENT
The plaintiff in this Second Appeal failed to prove that the items of immoveable property which he seeks to recover had fallen to the share of the 5th defendant's husband on partition. When the case came before the Court on the last occasion, as it had been decided by the Lower Courts before the Pull Bench decision in Soundararajan v. Arunachalam Chetty, we thought that it was desirable to ascertain whether although there had not been a division by metes and bounds, there bad been a division in status having regard to the decision of the Privy Council in Suraj Narain v. Iqbal Narain which was acted on by the Full Bench in LL.R, 39 Mad., 159. The finding in this case is that in a sale-deed concerning immoveable property not in suit, the major co parcener inserted a recital that he had become divided in an alleged partition many years previously which is found not to have been proved.
The question argued before us is whether this recital can be taken as having effected a severance in interest. It is not shown that it was communicated to anybody on behalf of the minor before the death of the major co-parcener and it is contended on the other side that in these circumstances he was undivided from his minor brother at the time of his death.
Now the position for which Mr. Prakasam has contended is that under the recent decisions of the Privy Council, it is not necessary that there should be any communication to the other co-sharers of the intention of the co-parcener to sever himself from the Joint family. We are unable to accept that position. The language of Mr. Ameer Ali delivering the judgment of their Lordships in 40 I. A., 40 at page 45 is that “to have that effect the intention must be unequivocal and clearly expressed.” The natural meaning of that, in our opinion, is that it should be clearly expressed to other co-parceners who are the persons interested. But the mattar is put beyond all doubt by the following two decisions of their Lordships. In one of them, Girja Bai v. Sudashiv Dhundiraj, Mr. Ameer Ali delivering their Lordships' judgment says “once the decision has been unequivocally expressed and clearly intimated to his co-sharers, his right to obtain and possess the share to which he admittedly has a title is unimpeachable; neither the co-share's can question it, nor can the Court examine his conscience to find out whether his reasons for separation were well founded or sufficient; the Court has simply to give effect to his right to have his share allocated separately from the others.” In the still more recent case in Kaival Nain v. Budh Singh, Lord Haldane delivering their Lordships' judgment applied the same rule to the decision of that case. He says “by his plaint he had claimed a fifth share of the family property, and their Lordships entertain no doubt that the claim amounted to an intimation to the defendants, his co-shares, of the unequivocal desire of the plaintiff for separation from the joint family. If this be so, the judgment of the Judicial Committee (reported in the case we have referred to) renders it beyond question that the commencement of this suit for partition effected a separation from the joint family.” This is a clear recognition of the necessity that the intention should be communicated to the co-sharers to effect a severance. As at present advised, we are not prepared to say that this doctrine does not apply even between a major co-parcener and a minor coparcener. But we think that in such a case, there mast be such an intimation as the case admits of, that is an intimation to the person who becomes a natural guardian as soon as the partition is effected and that person in this case is the mother of the minor. She is clearly a proper person to protect the separate interests of her son and she is the person who, according to the invariable practice of the Courts, is in the absence of the father appointed guardian adlitem in a suit for partition instituted by a major against a minor. In the present case, no such communication is proved during the lifetime of the major co-parcener and therefore the only conclusion we can come to is that when he died, he was undivided in status from his brother.
No doubt the plaintiff may have acquired the major coparcener's share by virtue of the transfer in his favour, and may have succeeded to his rights and be able to work them out in a suit properly framed; but he has not established the right which he claims in this suit for possession of these specific items of immoveable property.
In the result therefore the Second Appeal fails and is dismissed with costs.
C. K.Appeal dismissed.