PURNANANTHACHI Vs. T S GOPALASWAMI ODAYAR

JUDGEMENT

(1.) On 25 November 1895, the male descendants of one Sepperumal executed a deed, by which Balasubrahmanya, a grandson of Sepperumal, separated from the other members of the joint family on receiving one-fifth share of the family estate. In lieu of that share, the immoveable properties specified in list B mentioned in the third clause of the deed were allotted to him. There was admittedly a complete partition between him on the one side and the remaining members of the family on the other side, both in title to, and in physical possession of, the property. What was the status of the other members inter se ? Did they constitute a coparcenary, or were they divided in estate ? Now, Cl. 3 of the deed provided that they were to get the immoveable properties specified in list A and the outstandings detailed in list C. But these properties were not partitioned amongst them. The rule is, however, well established that :

(2.) When the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with ; and in the estate each member has thenceforth a definite and certain share which he may claim the right to receive and to enjoy in severally, although the property itself has not been actually severed and divided : Appovier V/s. Rama Subba Aiyan, (1866-67) 11 MIA 75 at p. 90.

(3.) The question is whether the share of each member was defined, though the property itself was not partitioned by metes and bounds. The determination of this question depends upon the interpretation to be placed on the terms of the document. Now the first clause of the deed not only gives a one-fifth share to Balasubrahmanya, but also states that the remaining four- fifths of the estate will be divided in five equal shares, each of which will be given to each of the five groups of the other members named therein. There can be no doubt that if it was intended that this clause should take effect immediately, there would be a division of their interest in the estate, and they cannot be held to be coparceners subject to the rule of survivorship. The definition of their shares would effect a severance of the joint status, and convert the joint tenancy into a tenancy in common. The deed, however, shows that Muthu, who was the senior member of the family, was anxious that there should be no disruption of the joint family, and that the members other than Balasubrahmanya should remain undivided during his lifetime. Muthu had no male issue, and, as stated in Cl. 6, he surrendered his own share in the estate. It was in compliance with his wishes that the clause states that the remaining members "shall, during the lifetime of the said Muthu, live as members of one family," and that after his death partition shall be effected according to the shares mentioned in Cl. 1. That there should be no immediate separation is emphasised by Cl. 8 which is in these terms: