(1.) The plaintiff sued to obtain possession of the properties described in para 1 of the plaint and for an injunction against the defendants, alleging that the lands were the ancestral property of her deceased husband Nana and his brothers defendants Nos. 1 and 2; that they were divided after the family became separate and enjoyed separately by each member. The defendants contended that the lands were ancestral and jointly acquired, that they were in possession, and that there had been no partition as alleged by the plaintiff. It has been proved that there was a division of the greater part of the family property, and also that the three brothers commenced to live separate. That would indicate an intention of the members of the family to sever in interest. In Ramalinga V/s. Narayana (1922) 24 Bom. L.R. 1209 P.C., their Lordships said, after expressing disapproval of the argument that the joint family status was not dissevered until a decree for partition was passed, This view is opposed to the law laid down in the case of Girjabai V/s. Sadashir Dhundiraj (1916) L.R. 43 I.A. 151 where it was held expressly, that under the law of the Mitakshara, to which the parties were subject, an unambiguous and definite intimation of intention on the part of one member of the family to separate himself and to enjoy his share in severalty has the effect of creating a division of the interest which, until then, he had held in jointness. This intention was clearly intimated to the co-parceners when the plaintiff Narayan served on them the notice Exhibit II, on July 30, 1909. That notice effected a separation so far as his branch of the family was concerned, and no obligation rested on the joint family in respect of his sons marriages.
(2.) If then a mere notice served upon the rest of the family by one of the members is sufficient to create a severance of interest, it is obvious, in this case, that the evidence which is referred to by the learned appellate Judge was sufficient to put an end to the joint family status. The fact then that two lands were left undivided would not affect the interests of the parties in these lands which would thenceforth be held by them as tenants-in-common and not as joint tenants.
(3.) We have been referred to the decision in Gavrishankar Parabhuram v. Atmaram Rajaram (1893) I.L.R. 18 Bom. 611, where the Chief Justice said: The circumstances that there had been a partition in 1876-77 would not, in the absence of any special agreement between the parties, alter their rights as to the property still undivided, as to which they would continue to stand to one another in the relation of members of an undivided Hindu family, and no such agreement amounting to a partition of the fields in question is alleged by the plaintiffs.