SOUNDARARAJAN (MINOR BY HIS MOTHER AND NEXT FRIEND, KANNAMMAL) Vs. TRMARRMARUNACHALAM CHETTY (DECEASED AND TWO ORS)

JUDGEMENT

(1.) The arguments in favour of a negative answer to the reference have been very ably presented by Mr. A. Krishnaawami Ayyar, but after all it comes back to this, what is the effect to be given to the following passage in the judgment of their Lordships of the Judicial Committee in Suraj Narain v. Iqbal Narain (1913) I.L.R. 35 Mad. 239: "The principle applicable to cases of separation from the joint undivided family has been clearly enuneiated by this Board in Rewun Persad v. Mussumat Radha Beeby (1846) 4 M.I.A. 137 and the well known case Appovier v. Rama Subba Aiyan (1866) M.I.A. 75. 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 facta of each case. A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed. In the present case that element appears to their Lordships to be wholly wanting."

(2.) It was argued that there was nothing in these two cases about separation by the unilateral act of the separating member; that as regards two later decisions which were referred to as supporting it the statement in Ram Ghunder Dutt v. Chunder Goomar Mundul (1869) 13 M.I.A. 181 at p. 198 that the alienation of their shares by two members of a joint family terminated the joint status was obiter, as the litigation was between these alienees and the alienee from the other member of the family : and that the observation in Chidambaram Chettiar v. Gauri Nachiar (1879) I.L.R. 2.Mad. 83 (P.C.); S.C. 6 I.A. 177 about separation having been effected by decree or earlier referred, as appeared from the printed book, to the opinion expressed by the Trial Judge that separation might be held in that case to have taken place even before decree as the defendants had oonsented to it during the trial and there was then a concurrence of wills. Certain other cases were referred to in which it was said their Lordships had treated partition as effected by the decree. These cases however wore cited before their Lordships in the course of the argument as well as the Calcutta cases which contain observations in favour of unilateral separation and the dissent from this view in Aiyyagari Venkataramayya v. Aiyyagari Ramayya (1902) I.L.R. 25 Mad. 690. In these circumstances I do not think that Courts in India would be justified in treating the statement in their Lordships judgment that a definite and unambiguous indication by a member may amount to separation as intended to express no opinion one way or the other, but to leave the matter open as unnecessary to decide seeing that no such definite and unambiguous indication was proved in the case. I am therefore constrained to answer the question in the affirmative, though I do so with some reluctance, as the opposite view has, I think, prevailed in this Court and is more in harmony with decisions of this Court on certain other questions which are dealt with in the judgment of my learned brothers.

(3.) None of the Privy Council decisions on this question proceed upon the authority of Hindu Texts, but, as the question has been argued from that standpoint, I may say that I do not think the texts to which we have been referred support the doctrine of partition by unilateral act, Vignaneswara says nothing about it in the Mitakahara. The passage which has been cited from the Sarasvati Vilasa begins with a complaint that the author of the Mitakshara had characteristically perhaps said nothing about division or separation as regards religious duties and merely endeavours to supply the omission. What the author says, if I rightly understand him, is this:--separation in religious duties cannot take place without partition of wealth where wealth exists, placitum 29. What however if the family has no property to divide? He cites Vishnu for the proposition that there may be a division of religious duties alone, but only, he explains, for those who have no wealth, placitum 28. In their case he says, placitum 30, "the separate performance of religious duties with or even without the others consent constitutes a partition of religious duties; but in the case of those who have wealth partition of wealth takes place." The only partition he appears to contemplate in the case of those who have wealth is actual division and this of course involves consent. Mayuka, Section 3, placitum 4, seems merely to reproduce in an abbreviated form the view of the Sarasvati Vilasa as to partition when there is a total failure of common property. The comment in the Viramitrodaya, Chapter 2, Part 1, placitum 5, that an actual assemblage of brothers is not necessary to effect a partition though it is mentioned in Manu IX, 104, does not I think affect this question. My answer is in the affirmative. Sadasiva Ayyar, J.