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Judgment
The plaintiff in this Second Appeal failed to prove that the items of Immovable property which he seeks to recover had fallen to the share of the
5th defendant''s husband on partition. When the case came before the Court on the last occasion, as it had been decided by the Lower Courts
before the Full Bench decision in Soundararajan v. Arunachalam Chetty ILR (1915) Mad. 159 we thought that it was desirable to ascertain
whether although there had not been a division by metes and bounds, there had been a division in status haying regard to the decision of the Privy
Council in Suraj Narain v. Ikbal Narain (1912) L.R. 40 IndAp 40 which was acted on by the Full Bench in Soundararajan v. Arunachalam Chetty
ILR (1915) Mad.159. The finding in this case is that in a sale-deed concerning Immovable property not in suit, the major co-parcener inserted a
recital that he had become divided in an alleged partition many years previously which is found not to have been proved.
The question argued before us is whether this recital can be taken as having effected a severance in interest. It is not shown that it was
communicated to anybody on behalf of the minor before the death of the major co-parcener and it is contended on the other side that in these
circumstances he was undivided from his minor brother at the time of his death.
Now the position for which Mr. Prakasam has contended is that under the recent decisions of the Privy Council, it is not necessary that there
should be any communication to the other co-sharers of the intention of the co-parcener to sever himself from the joint family. We are unable to
accept that position. The language of Mr. Ameer Ali delivering the judgment of their Lordships in Suraj Narain v. Ikbal Narain (1912) L.R. 40
IndAp 40 is that "" to have that effect the intention must be unequivocal and clearly expressed."" The natural meaning of that, in our opinion, is that it
should be clearly expressed to other co-parceners who are the persons interested. But the matter is put beyond all doubt by the two following
decisions of their Lordships. In one of them, Girja Bai v. Sadashiv Dhundiraj (1916) L.R. 43 IndAp 151 Mr. Ameer Ali delivering their Lordships''
judgment says "" once the decision has been unequivocally expressed and clearly intimated to his co-sharers, his right to obtain and possess the
share to which he admittedly has a title is unimpeachable; neither the co-sharers can question it, nor can the Court examine his conscience to find
out whether his reasons for separation were well-founded or sufficient; the Court has simply to give effect to his right to have his share allocated
separately from the others."" In the still more recent case in Kawal Nain v. Budh Singh (1917) I.A. p. 159 Lord Haldane delivering their Lordship''s
judgments applied the Same rule to the decision of that case. He says ""by his plaint he had claimed fifth share of the family property, and their
Lordships entertain no doubt that the claim amounted to an intimation to the defendants, his co-sharers, of the unequivocal desire of the plaintiff for
separation from the joint family. If this be so, the judgment of the Judicial Committee (reported in the case we have referred to) renders it beyond
question that the commencement of this suit for partition effected a separation from the joint family"". This is a clear recognition of the necessity that
the intention should be communicated to the co-sharers to effect a severance. As at present advised, we are not prepared to say that this doctrine
does, not apply even between a major co-parcener and a minor co-parcener. But we think that in such a case, there must be such an intimation as
the case admits of, that is, an intimation to the person who becomes a natural guardian as soon as the partition is effected and that person in this
case is the mother of the minor. She is clearly a proper person to protect the separate interests of her son and she is the person who, according to
the invariable practice of the Courts, is in the absence of the father appointed guardian ad litem in a suit for partition instituted by a major against a
minor. In the present case, no such communication is proved during the lifetime of the major coparcener and therefore the only conclusion we can
come to is that when he died, he was undivided in status from his brother.
No doubt the plaintiff may have acquired the major coparcener''s share by virtue of the transfer in his favour, and may have succeeded to his
rights and be able to work them out in a suit properly framed; but he has not established the right which he claims in this suit for possession of these
specific items of Immovable property.
In the result therefore the Second Appeal fails and is dismissed with costs.