GANGADHARRAO GOPALRAO Vs. RAMCHANDRA

JUDGEMENT

(1.) THESE two appeals arise out of a suit filed by the plaintiff to recover a moiety of the properties described in the plaint at serial Nos. 1 to 30 after a partition by metes and bounds, and also for exclusive possession of the properties described at serial Nos. 31, 32 and 33 The plaintiff also asks for a declaration that he is entitled to the moveable property allotted to the share of the deceased Keshavrao, and that he is entitled to receive the judi amount specified in the plaint.

(2.) THE plaintiff Gangadharrao had three brothers, Sheshagirirao, Annarao and Keshavrao, and they formed a joint Hindu family. Sheshagirirao died without leaving a widow or any issue, and thereafter Annarao, Keshavrao and Gangadharrao lived in union. Defendant No.1 Shreepad is Annarao's son, and defendant No.5, Rindabai, is Annarao's daughter. Defendants Nos. 2, 3 and 4 are Shreepad's sons. After Annarao's death, defendant No.1, Keshavrao and the plaintiff lived as members of a joint Hindu family. In 1917 defendant No.1 Shreepad, who was then a student, executed a general power of attorney in favour of his uncles Keshavrao and Gangadharrao, as they were managing the joint family estate. After he completed his education, defend ant No.1 gave a notice to his uncles on September 19, 1921, cancelling the power of attorney and demanding his one-third share in the joint family properties. Besides the ancestral joint family property, Keshavrao had inherited three lands, described in serial Nos. 31, 32 and 33 in the plaint, from his wife.

(3.) ADMITTEDLY defendant No.1, Keshavrao, and the plaintiff were undivided, till defendant No, 1 gave a notice to Keshavarao and the plaintiff on September 19, 1921. He says that he had just given the notice for the purpose of cancelling the general power of attorney, which he had given to his uncles in 1917 ; but the notice itself contains an unequivocal intention on the part of defendant No.1 to separate from his uncles, and get his one-third share in the ancestral joint family property separated by metes and bounds. Ordinarily such an expression of intention effects a severance in the co-parcenery, and if it is followed by a partition, then the co-parcenery is to be deemed to have come to an end when the notice expressing the intention to separate was given. This principle was laid down in Suraj Narain v. Ikbal Narain (1912) L.R. 40 I.A. 40: S.C. 15 Bom. L.R. 456, in the following terms (p. 45): What may amount to a separation or what conduct on the part of some of the members may lead to 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 intention to separate himself and to enjoy his share in severally may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed. But it is possible that, after such an intention is expressed, the parties may decide not to effect a severance, but to continue to be joint as before. In such a case the mere giving of a notice expressing an intention to separate is not sufficient by itself to put an end to the coparcenery. As observed by Sir George Rankin in Ram Narayan Sahu v. Makhnaa (1939) 41 Bom. L.R. 1136 P.C., in order to ascertain whether the family continued to be joint, or became separated, by an expression of the intention to sever the interests, the subsequent conduct of the parties must be looked to. Thus in Banke Bihari v. Brij Bihari (1928) I.L.R. 51 All. 519, where a member of a joint Hindu family sent a registered notice to the other members demanding a partition, but the intention to separate was given up a day or two later as the result of a subsequent agreement of the members at a family meeting and there was no disruption of the family in fact, it was held that the notice did not, by itself, operate to effect a separation in law. An unequivocal demand for partition, which has not been persisted in and has been withdrawn or abandoned with the consent of the other members of the family, cannot be treated as nevertheless effecting a separation.