KUNHILAKSHMI AMMAL Vs. KIZHAKKE PALAT KRISHNA MENON

JUDGEMENT

(1.) This appeal arises out of two suits for partition of a Malabar tarwad which were brought respectively by the karnavan of the tarwad and the senior anandravan.

(2.) The appellants were the 46 to 55 and the 65 defendants in O.S. No. 28 of 1942 and defendants 19 to 28 and the 65 defendant in O.S. No. 37 of 1943.

(3.) The question to be decided can be shortly stated. The 65 defendant, who belongs to the tavazhi of defendants 46 to 55, was born during the pendency of the suit. It is admitted, however, that the date of her conception was subsequent to the date of the plaint but prior to the date on which the written statements of the several defendants were filed in which they expressed their desire for severance of status. If, therefore, the severance of status of defendants 46 to 55 dates from the date of the plaint, the 65 defendant who was not conceived by that date, would not be entitled to a share. On the other hand, if the dates of severance are the dates on which the written statements were filed she will be entitled to a share. The learned Subordinate Judge held that the date ofthe severance of status among the several defendants was the date of plaint. He quoted no autho-rity in support of his finding and the reason given by himfor choosing the date of plaint rather than the date on which the expression of the desire for severance was made by the several defendants was merely a convenience. He thought that it would lead to much inconvenience if the several defendants had to be regarded as having severed their status on different dates. In our opinion mere convenience cannot be accepted as the test. The plaint is taken as the date on which a plaintiff who seeks partition severs his status because on the date when lie files the plaint he expresses his unequivocal intention of severing his status. In a suit for partition however unless it is by the father of a Hindu joint family, the mere expression of his intention to sever his status by the plaintiff in his plaint does not carry with it the severance of the other members of the family. If they have not previously expressed a desire for severance of status their status will not be severed unless by their written statements they, in their turn, express their desire for severance. It follows from this that the date on which they severed their status must be date on which they expressed their unequivocal intention of doing so, that is, the date on which they filed their written statements. We have not been referred to any reported decision on this question but the view we have expressed was taken by Somayya, J., in his judgment in S.A. No. 275 of 1939, which has not been reported. In our opinion, therefore, the 65 defendant was conceived before the defendants became divided inter se. She was, consequently, entitled to her share and the decree of the lower Court will be modified so as to give her a 1/66 share. The appeal is allowed.