THANDAYUTHAPANI KANGIAR Vs. RAGUNATHA KANGIAR

JUDGEMENT

(1.) The plaintiff obtained a preliminary decree for partition which was confirmed with modification on appeal and died while a second appeal was pending. His legal representatives have petitioned to be brought on record and the petition is opposed on the ground that the plaintiff s share passed on his death by survivorship and that there is nothing for the representatives to succeed to. Whether this be so or not is a question to be decided in the appeal itself after hearing both sides. The legal representatives deny that the plaintiff s share passed by survivorship on his death and say they are entitled to be brought on the record for the purpose of contesting the point. We therefore overrule the objection and direct the legal representatives to be brought on the record.

(2.) On the main question it was held by this Court in Subbaraya Mudali v. Manuka Mudali (1896) I.L.R. 19 M. 345, differing from Sakharam Mahadev v. Hari Krishna Dangha (1881) I.L.R. 6 B. 113, that a decree for partition effects a severance of the joint family ; that this severance is not affected by the subsequent filing of an appeal from the decree. Our attention was, however, called to certain observations in Gorakala Kanakayya v. Janardana Radhi (1910) M.W.N. 841 at p. 844 (where the point did not arise for decision) in which Sakharam Mahadev v. Hari Krishna Dangha (1881) I.L.R. 6 B. 113 was referred to with approval. We have accordingly reconsidered the question, but after listening to the able and exhaustive argument addressed to us by Mr. S. Srinivasa Aiyangar I see no reason to differ from the previous decision of this court. Partition may be effected by consent and in proper cases by decree. When it is effected by decree, I can see no reason why the decree should not hold good as other decrees do unless and until it is reversed. It is not a feature of our law, or any other legal system so far as I know, that the filing of an appeal should affect the operation of a decree; and unless the court intervenes to stay proceedings the property may be partitioned and distributed in the shares fixed by the decree before the appeal is finally determined, possibly years before in cases where there are a series of appeals. Where a decree for partition has been properly made and has directed the division of the property in appropriate shares, I can see no reason for altering this portion of the decree on appeal by reason of births or deaths afterwards supervening in the family. A partition by consent in certain shares when once made is not affected by subsequent births or deaths in the family and there does not appear to be any reason why it should be otherwise when it is made by decree.

(3.) The ordinary rule admittedly is that decrees which were right at the time they were passed are not varied by reason of events which subsequently happen, and I can see no reason why an exception should be made in the case of decrees for partition, or why partitions by decree should be put on such an unfavourable footing as compared to partitions effected by consent. Assuming alienees would not be prejudicially affected, it would still be a hardship to the parties themselves to make their rights on partition to depend on their surviving the appeal proceedings.