PARAMESWARAN NAIR Vs. LAKSHMIAMMA

JUDGEMENT

(1.) THIS appeal is by the 1st defendant in a suit in partition. The plaintiffs claim themselves and defendants 1 to 7 to constitute a tarwad to which the suit properties belong. The 1st defendant denied the existence of such a tarwad asserting the plaintiffs' tavazhi to have separated from his tavazhi when their ancestress Meenakshikutty Amma demanded partition on January 1, 1940, and claimed the plaint properties to belong to him or to his tavazhi. The Munsiff found the parties to constitute a tarwad and the plaint properties to belong to that tarwad and therefore decreed the suit. The subordinate Judge on appeal, has affirmed him. Hence this second appeal.

(2.) EXT. B11, the notice issued by Meenakshikutty Amma and her mother to the karanavan on January 1, 1940, is an unequivocal demand for partition. The plaintiffs who are their descendants, were minors or unborn then. The view of the courts below is "that the persons who sent EXT. B-11 abandoned their idea of getting a partition and as such EXT. B-11 cannot be considered to have effected a division in status. " This is insupportable. In law, a unilateral declaration of intention to separate communicated to the other members effects a status of division between the member so demanding and the others. The moment the communication of such intention takes place, the status of division becomes an accomplished fact. No question of pursuance or abandonment of the idea of getting a partition" is material or relevant thereafter. It follows that on January i,1940, the tavazhi of the plaintiffs became divided off from the other members of the tarwad who constituted the tavazhi or the 1st defendant though nothing further took place in pursuance of the notice aforesaid.

(3.) IN Bhagirathibhai v. Manohar AIR 1951 Nag. 164 Bose C. J. and Hidayatullah, T. took occasion to observe: "reliance was also placed on the conduct of the father and mother after the decree. Both of them state that no steps were taken to implement the partition by, for exatnble dividing the properties and state that to all intents and purposes the family continued joint. But we do not think that is relevant, because if the decree severed the status then there could be no reunion for the simple reason that the minor could not consent. Unlike severance of status, which can be affected unilaterally, reunion can only be with consent. . . And as a minor cannot give consent, and as no one else is said to have done so on his behalf, the argument regarding reunion goes. " The factus were thus: IN a prior suit by the father against the mother and the minor son (aged 2 years) the compromise decree was that "each owns and has one-third share in the whole property separately. " After that decree the properties came to be sold in execution of money decrees against the father alone. The son after attaining majority, sued to avoid the sales and recover his share of the properties. Their Lordships observed that the facts that the properties were not divided among them in metes and bounds and that they all lived together would not prove a reunion annulling the status of division they had attained through the compromise decree, as nobody was said to have agreed for a reunion on behalf of the minor who could not himself give a consent thereto. The last portion of the above quote shows that if a person competent to give consent on behalf of the minor, e. g. a legal guardian of the minor, had expressed consent to a reunion a lawful reunion could have happened. I would respectfully follow the example of this precedent and overrule the contention that as long as there is a minor in the divided branch, a reunion is impossible with it. (I would have said that for a reunion of divided branches of a tarwad the consent of the heads of the branches as their representatives would suffice but for the decision in 1963 KLT 61 that over-ruled 1662 KLT 99 ).