PASUMARTHI VENKATESWARA RAO, MINOR BY NEXT FRIEND ANDGRAND-FATHER VENKATARATNAM Vs. PASUMARTHI VENKATANARAYANA

JUDGEMENT

(1.) This appeal arises out of a suit for partition, O.S. No. 73 of 1934, filed on behalf of two minor plaintiffs who were brothers by their maternal grandfather. The father of the plaintiffs is defendant 4. When the suit was filed a step-brother of the plaintiffs was in the womb. After his birth he was impleaded as defendant 11 but died before the preliminary decree was passed. It is common ground that the share of defendant 4 and his sons in the family property is one-third. In its preliminary decree the first Court declared that the plaintiffs were entitled to half of this one-third, and that defendant 4 was entitled to the other half, one-fourth in his own right, and one-fourth by inheritance from his son defendant 11. Plaintiffs appealed. While the appeal was pending plaintiff 1 died. It was held by the appellate Court that his share fell to his father defendant 4, so that in the appellate decree plaintiff 2 is declared entitled to one-fourth, of one-third and defendant 4 entitled to the remaining three-fourth of that one-third. Against that decree plaintiff 2 has preferred this Second appeal. In the appeal memorandum he contends: (i) that defendant 11 was never entitled to any share, and (ii) that plaintiff's share has passed not to defendant 4 but to himself. At the hearing of the appeal the first of these contentions was not seriously pressed. I proceed accordingly to consider the second.

(2.) The decision of this question depends upon whether the action of the two plaintiffs in filing the suit has brought about their separation from each other. If it has, defendant 4 certainly succeeds to plaintiff l's share; if it has not, plaintiff l's share falls to plaintiff 2 by survivorship.

(3.) It is clear from the authorities that the joint filing of a plaint by two plaintiffs cannot automatically and invariably bring about their separation inter se. The question depends upon their wishes or intentions. When one coparcener separates from the others, there is no presumption that the latter remain united. See Balalux V/s. Rukhmabai (1903) L.R. 30 I.A. 130 : I.L.R. 30 Cal. 725 (P.C.) On the other hand there is equally no presumption that they are separated. As is laid down in Palani Ammal V. Muthuvenkatachala Monigar (1924) 48 M.L.J. 83 : L.R. 52 I.A.83 : I.L.R. 48 Mad. 254 (P.C.) (also a decision of the Privy Council): A member of a joint family can separate himself from the other members... and the remaining coparceners, without any special agreement amongst themselves may continue to be coparceners.... The decision whether the other members remain joint or become divided must therefore depend upon their own actions.