PALANIAMMAL Vs. MUTHUVENKATACHALA MANIAGARAR

JUDGEMENT

(1.) This Appeal appears to me to be quite unarguable on the question of the compromise, and I confine myself to the question whether the plaintiffs are entitled to partition of the suit lands as joint family property. The view taken in this Presidency prior to the Full Bench decision in Soundararajan v. Arunachalam Chetty (1915) I.L.R.39 M. 159 : 29 M.L.J. 8l6 was that, while every coparcener had, a right to partition, actual severance was only effected either by agreement of the co-parceners or by a preliminary decree in a suit for partition. The Full Bench felt bound to abandon that view in deference to the observations of their Lordships in Suraj Narain y, Ikbal Narain (1912) L.R. 40 I A. 43 : 24 M.L.J. 345 : 35 A. 80 and that they interpreted that decision correctly appears from the subsequent decision of their Lordships in Girjabai 1 Sadashiv Dhundiraj (1916) L.R. 43 I.A. 151 : 31 M.L.J. 455 : 43 C. 1031 which must be taken as finally settling the question, Kawal Nain v. Prabhu Lal (1917) L.R. 44 I.A. 159 : 33 M.L.J. 42 : 39 a 496. In Girjabai v. Sadashiv Dhundiraj (1916) L.R.43 I.A. 151 at p. 160 the cases are said "to establish clearly that separation from the joint family involving the severance of the joint status so far as the separating member is concerned, with all the legal consequences resulting there from, is quite distinct from the de facto division into specific shares of the property held until then jointly. One is a matter of individual decision, the desire on the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined or unspecified share separately from the others without being subject to the obligations which arise from the joint status; whilst the other is the natural resultant from his decision, the division and separation of his share, which may be arrived at either by private agreement among the parties or on failure of that by the intervention of the Court". There are however two observations which I wish to make on this with reference to the facts of the present case. As stated earlier in the judgment " separation which means the severance of the status of jointness is a matter of individual volition," and it has been ruled by their Lordships in accordance with these principles that the filing of the plaint in a suit for partition is sufficient to effect a partition. I do not understand this ruling to mean the effect of filing such a plaint is necessarily final. Treating the matter as one of individual volition, it seems to me that it is open to a co-parcener who has filed a plaint for a partition to abandon that intention before the suit has proceeded to a decree and to elect to continue in a state of jointness. The reason for so holding is all the stronger in this part of India where the filing of a plaint for partition was not understood as of itself effecting a severance. Secondly, as to the effect of severance by one co-parcener or the other co-parceners, it is well settled that, when one co-parcener severs himself from the joint family, the other co-parceners may remain united inter se, as was recognised by their Lordships in Ram Pershad Singh v. Lakhpati Koer (1902) L.R. 30 I.A., 1 : I.L.R. 30 C. 231, and Balabux Ladhuram v. Rukhmabai (1903) L.R. 30 I A. 130 1903. The observation in the latter case that there is "no presumption, when the one coparcener separates from the others, that the latter remain united" was a general one, and cannot, in my opinion, be read as affecting the presumption that the other co-parceners remain united at any rate in this part of India where all that is shown is that one co-parcener has severed himself and had his share allotted to him. In this state of things it is usual in this part of India for the other co-parceners to go on living as before, and I entirely agree with what my learned brother with his greater experience of the habits and customs of his countrymen has said upon the subject. See also Ranganadha Rao v. Narayanasami Naicker (1908) I.L.R. 31 Mad. 482 and Ranga-sami Naidu v. Sundarajulu Naidu.

(2.) These being the general principles, it only remains to apply them to the present case. The common ancestor purchased a mitta in the early part of the last century, and in 1835 one of the younger sons sued the eldest son for partition and another of the younger sons Shanmuga Kumara Maniagar was one of the defendants in that suit. When his son sued for partition in 1849, it was objected that his father had admitted in the suit of 1835 that the Zemin was impartible, but the Civil Court held that the plaintiff s father had not given up his claim for partition in that suit, but only expressed his willingness at the time to the estate being managed by the eldest brother as head of the family, Exhibit E. That is all we know of the suit of 1835, and it does not seem sufficient to warrant us in holding that the filing of the plaint in that case operated as a division in status of all the co-parceners.

(3.) Then we come to the suit 1843 which was a suit for partition and allotment of the share taken by the plaintiff under a will of the first Zemindar. The Civil Judge found that the will was not operative, as the property was joint family property and that the division in the will was beyond the powers of the testator, and passed a decree for the partition of the suit property dividing one half among the sons of the senior wife and allotting the other half to the son of the junior wife according to what he erroneously believed to be the rule of Hindu Law. Here again I do not think the filing of a suit for partition by the ancestor of the plaintiff s branch can be said of itself to have effected a severance, as when the case was under appeal to the Sudder Adalat the plaintiffs ancestor entered into a razinamah, the effect of which will be considered later, and asked the Court not to proceed with the partition, and the Court acted on his application and inserted in the judgment what appears to be a declaration that the family was to continue joint.