RAMA AYYAR Vs. MEENAKSHI AMMAL

JUDGEMENT

(1.) Defendant 1 is the appellant. His father one Subbier filed a suit against him for partition of joint family property on 18 August 1922. The summons in the suit was served on the defendant by affixing it on the door on 16 September 1922. On 15 September 1922 (i. e., one day before the service of the summons) Subbier settled some portions of his half share of the property on two of his daughters and simultaneously executed a "will" with respect to the other properties. He died on 1 April 1924 but even by that time the suit had not been tried. The persons entitled under "the settlement" and the "will" were after contest brought on as his legal representatives as plaintiffs 2 to 6 and defendant 10 and they got a. decree for a half share of the property. The first Court's decree was confirmed on appeal by the appellate Court.

(2.) In second appeal it is argued that on the date of the "will" and "settlement" (that is, 15 September 1922) the father had no power to execute them as the declaration of his intention to divide contained in the plaint was not communicated to the defendant till 16 September 1922 and as he for that reason still remained a member of an undivided Hindu family at the time of the execution of those documents. In reply it is contended that by the mere presentation of the plaint for partition in a suit in which notice has been served on the defendant the plaintiff becomes divided from the other members of the joint family and that the status of division in such a case takes effect from the date of the plaint and not from the date when the notice of the suit is communicated by the Court to the defendant.

(3.) The question in this form has not arisen for determination in any of the Courts but there is a decision on the point in the Judicial Commissioner's Court reported in Rachhpali V/s. Chandesardei A.I.R 1924 Oudh 252 to which I shall refer in the course of this judgment. If the appellant's contention is accepted it would follow that his father had no power to execute the will and settlement in question as he was on the date when they were executed still a member of an undivided family since the notice was served on the defendant by Court only the next day after the execution of the documents, that is on 16 September 1922.