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Judgment
John Wallis, C.J.—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 ILR (1913) 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.
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 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 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 ILR 25 (1902) 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.
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.
The question referred by the Division Bench to the Pull Bench is whether a member of a joint Hindu family becomes separated from the other
members by the fact of suing them for partition.
In Madras, it seems to have been generally assumed by the Bench and the Bar till the Privy Council decision in Suraj Narain v. Iqbal Narain
ILR (1913) All. 80, that no separation of the plaintiff in status, which will affect what is loosely called the right of survivorship, takes place by the
mere fact of the suit for partition and that it is only the decree of the Court passed in the suit which affects such status. In Subbaraya Mudali v.
Manika Mudali ILR (1896) Mad. 345, there is the following obiter dictum:-- ""The right to continue a suit for partition after the death of the plaintiff
would, of course, not devolve on his widow or other heir, not being a coparcener of the defandant, because, immediately on the death happening
before the decree, the right of survivorship would take effect."" In Sudarsanam Maistri v. Narasimhulu Maistri I.L.R 25 (1902) Mad. 149, the
following obiter dictum occurs at page 156: ""Any such person"" (that is a member of an undivided Hindu family) "" may also retire therefrom"" (chat is
from the membership in the undivided family) ""by civil death or by renunciation on his part acguiesced in by the remaining members, provided such
renunciation and acquiescence are manifested by an overt-act--namely, the giving him ''some trifle'' out of the family property."" ""With all deference
to Gatth, C.J., I find myself wholly unable to concur in the proposition enunciated by that learned Judge that a mere declaration by one member
that he was separate from the others, would seem to be sufficient to affect the separation. Radha Churn Dass v. Kripa Sindhu Dass ILR (1860)
Calc. 474"". These seem to me to. be the only dicta that directly negative the proposition that it is open to a member of an undivided Hindu family
governed by the Mitakshara Law to effect separation between himself and the other members by an unequivocal and unambiguous declaration to
that effect made in the plaint in a suit for partition brought by him, even after that declaration has been communicated to the other adult male
members by the service of summonses in the suit. There are observations in numerous other judgments, not only of this High Court but of the other
High Courts and of the Privy Council, that a partition of status is made by mutual consent or by decree of Court, but those observations cannot be
safely relied on as implying that except in those two modes, partition of status cannot be effected and that only in those modes, it could be affected.
It is well established that even without the consent of his sons who are his coparceners, a father can effect a partition among his sons and between
himself and his sons and it has been further held that without an express agreement to divide, partition in status is effected by conduct such as
separate messing, separate contracting of debts, separate dealings with properties, mutual dealings on the footing of separata interests and so on.
See Gadian Chettiar v. Gadian Chettiar (1914) I.L.W. 799 and Mussamut Josoda Koonwur v. Gouris Byjonath Sohae Sing (1866) 6 W.R. 139.
As I have said already, even the direct pronouncements in Subbaraya Mudali v. Manika Mudali ILR (1896) Mad. 345 and Sudarsanam Maistri v.
Narasimhulu Maistri ILR (1902) Mad. 149 are obiter.
In several cases in the Calcutta High Court, on the other hand, cases falling under the Mitakshara Law, there are dicta (though again, mostly if
not wholly obiter dicta) that an unequivocal declaration by one member with or to the knowledge of the other members does effect a division in
status. See Bulakee Lall v. Mussamut Indurputtee Kowur (1865) 3 W.R. 41, Mussamut Josoda Koonwur v. Gourie Byjonath Sohae Sing (1866)
6 W.R. 139, Mussamut Vato Koer v. Rowshun Singh (1867) 8 W. 82, Debee Pershad v. Phool Koeree alias Gheena Koeree (1869) 12 W.R.
510, Mussamut Phoolbas Kooer v. Lall Juggessur Sahi (1870) 14 W.R. 340 and Raghubanund Doss v. Sadhu Churn Doss ILR (1879) Calc.
425,
I do not think it necessary to refer to the other numerous cases decided by our High Court and the other High Courts quoted before us as they
do not contain any dicta directly dealing with the proposition for which the defendant contends in this case, namely, that an unequivocal declaration
does create a division of status. These other cases deal (1) with the effect of an alienation attempted to be made by will of his undivided share in
the whole or in one or more of the coparcenery properties or the alienation of the entire ownership in one or mora of such properties by a member
of the coparcenery or (2) with the effect of gifts inter vivos so attempted to be made or (3) with the effect of alienations inter vivos for value so
made. The observations found scattered in such cases were relied on for the purpose of showing that as the logical result from those observations,
there followed either the affirmative or the negative of the above proposition for which the defence contends in the case before us. The
development of law is not always logical and the development of the Hindu Law in connection with the legal effect of alienations by a member of a
coparcenery, cannot be proved, in my opinion, to be strictly logical even by the employment of the highest ingenuity and learning and I, of course,
shall not attempt to do so. Similar observations apply to the law relating to the son''s liability for the father''s debts, the law relating to alienations for
discharging such debts, the law relating to the rights of alienees from the incumbent of an impartible zamindari, the law relating to succession to such
zamindaris and to many other branches of Hindu Law. In Chinnu Pillai v. Kalimuthu Chetti ILR (1912) Mad. 47, in the opinion of the Honourable
Mr. Krishnaswami Ayyar printed at page 59, the following occurs:-- ""But it does not follow from this that if a coparcener alienates his interest in
family property, the alienee has, until actual partition, no definite share in the property. Like the alienee from a joint tenant in England, the alienee
from a coparcener in India has a fixed share in the common property with reference to the date of alienation."" This implies that the alienor who sells
away his share in all the coparcenery properties becomes severed from the joint family and the alienee becomes a tenant in common with the other
coparceners in respect of the share so alienated. See also the decision in Aiyyagari Venkataramayya v. Aiyyagari Ramayya ILR (1902) Mad. 690,
the judgment of Sundara Ayyar, J., in Doraisawmi and Another Vs. Nondisawmy Saluvan and Others, and the decision of Benson and Sundara
Ayyar, JJ., in V. Subba Row Vs. Annathanarayana Aiyar and Others, . I respectfully agree with the above opinions and respectfully dissent from
the decisions which have held that the alienor coparcener continues to be a member of the undivided Hindu family (and is hence entitled to the
accretions to his share caused by the subsequent death of coparceners dying without leaving male issue) and from the decisions which hold that the
alienee from a coparcener does not get any rights in or title to the share of the alienor but only an ""equity"" to be worked out, in a partition suit.
(Some of the decisions I so respectfully dissent from are found in Nanjaya Mudali v. Shanmuga Mudali (1914) 15 M.L.T 186, T.R. Ganesh Row
alias Venkat Row Vs. T.V. Tulja Ram Row and Others, and Sir Venkataswetha Chalapathy Ranga Rao Bahadur and K.C.I.E. Maharaja of
Bobbili and Others Vs. W.S. Venkataramanjulu Naidu and Others, .
Before proceeding further, I shall first consider the question whether the filing of a suit for partition is, in the language of the Privy Council, ""a
definite and unambiguous indication by one member of his intention to separate himself and to enjoy his share in individuality"" and whether such
intention is made ""unequivocal"" by the filing of the plaint and becomes ""clearly expressed"" to the other coparceners by the summonses served on
them in the suit. It seems to me that if the plaint is filed, not merely for a declaration of the plaintiff''s right as a coparcener in an undivided family (as
in the old Calcutta case Debee Pershad v. Phool Koeree alias Gheena Koeree (1869) 12 W.R. 510 but is brought for a partition of the joint family
property on the basis that the plaintiff wishes to be treated as a divided coparcener from the date of the plaint (if not from an earlier date) and if he
seeks for mesne profits at least from the date of the plaint if not from an earlier date, and asks for the division of the properties as they stood at the
date of the plaint, if not at an earlier date, it seems to me difficult to conceive of a stronger, more unequivocal and more unambiguous declaration of
an intention to separate himself and if that intention is communicated through the Court by summonses issued to the defendants (the remaining
coparceners) in that case, such clear expression of intention becomes fully effectual to create division in status. I take it that the phrase ""clearly
expressed"" means ""clearly expressed to the definite knowledge of the other coparceners.
I shall now proceed to consider the Hindu Law texts on this point. Manu in chapter 9, sloka 111, seems to treat a separation in living and
messing as a very laudable act as it multiplies religious acts and hence a mere desire to live apart and the consequent living apart among brothers as
effecting separation in interest so as to put an end to the right of the eldest brothers to manage the whole patrimony. Saraswathi Vilasa deals in
placita 22 to 33 with the question of what constitutes division of status. In placitum 29, it lays down the rule that, in the case of brothers who have
wealth, partition of religious duties should be made only after the partition of wealth. In placitum 28, it lays down another general rule that ""partition
can be effected by mere intention, just as the making of an appointed daughter can be effected by mere intention without any formality."" It seems to
me clear that in this placitum the word, ''''Partition,"" does not exclude partition of wealth and is not confined to partition of religious duties as argued
by Mr. A. Krishnaswami Ayyar for the appellant. Placitum 30 is as follows:-- ""Therefore also in the case of those who have no wealth, the
separate performance of religious duties with or even without others'' consent constitutes a partition of religious duties; but in the case of the rich,
partition of wealth takes place."" It seems to me that the purchase ""with or even without others'' consent"" is introduced so as to show the
applicability of the general rule laid down in placitum 28, that mere intention without the other coparceners'' consent does effect a division and not
to introduce any qualification that, as regards partition of wealth, others'' consent is necessary. The distinction made is not, between the creation of
a division in status with or without others'' consent in the case of religious duties and the creation of a division in status with others'' consent alone in
the case of partition of wealth, but between the creation of a division in status in the case of those who have no wealth effected by a separate
performance of religious duties alone with or without consent and the creation of a division in status by a separation of interest in wealth only with
or without consent in the case of those who have wealth, because a separate performance of religious duties alone in the case of coparceners who
have wealth is not sufficient to effect division in status.
In placitum 33, the Saraswathi Vilasa declares that not only Manu and Yangavalkya but every Smrithi and every commentator and the
Nibandha Kara without exception favours division in status, thus showing that the true Hindu Law does not favour the doctrine of joint status,
though customs borrowed from the Malabar Marumakkattayam system or other sources mights have gradually encroached upon the Shastraic
Law originally followed.
Again even in the case of those who have wealth, a coparcener who has not effected division in status by getting his share of the wealth or by a
clear intention expressed to his other coparceners can by conduct continued for a number of years be deemed to have expressed that intention,
that conduct being the separate performance of religious ceremonies for ten years. This is provided for, by placitum 34. Placitum 34 cannot apply
to those who have no wealth as the separata performance of religious duties in their case without any condition as to the length of the period at
once severs the interests. In fact, placitum 34 says that those separately performing religious duties for ten years ""should be understood as divided
in respect of the paternal wealth,"" that is, even without actual division or declaration of intention to divide. The ten years period is, of course, only a
rule of evidence under the old Hindu Law which is not now binding on the Courts which are governed by the Evidence Act.
In the Viramitrodaya, placitum 4 of chapter II, says at the end that even while the mother is living (after the father''s death) the sons have no
right to the parental wealth as they ought to be dependant on the mother for their support and maintenance. Then placitum 5 clearly states that the
status of division is created at the desire of a single coparcener and hence a meeting of the brothers in order to arrive at a consensus* in respect of
divided status is not necessary.
In Vyavahara Mayuka, Section 3, placitum 2, it is said ""also when there is a total failure of common property, a division in status may even
then be made, by the mere declaration, ''I am separate from thee''; for, a partition merely indicates a state of the mind. Transactions relating to
partition are only declaratory of this mental state."" I am unable to accept the far-fetched gloss of Mr. A. Krishnaswami Ayyar on the last two
sentences that they relate only to those who have no secular wealth to divide nor can I accept the still more far-fetched comment of Mr. Mandlik
that the Bombay author of the Vyavahara Mayukha was influenced by the Bengalee commentator Jimuta Vahana.
If a coparcener can demand partition and separation of his share at any time and if the other coparceners are legally bound to give him his
share at once, it seems to be clear that separation in interest takes place as soon as he expresses an unequivoca intention to that effect or makes an
unequivocal demand for partition and that the necessary delay in ascertaining the particular property which falls to his share either by agreement or
by an award of panchayats or by a decision of the Court cannot delay the separation in status. As it is put in Raghubanund Doss v. Sadhu Churn
Dossi ILR (1879) Calc. 425 ""this separation of status by declaration and communication of intention has its origin in the power of each member of
a family to demand a partition at any moment and the inability of the family to retain any member in joint ownership longer than he may desire."" The
managing member of an undivided Hindu family cannot surely represent a junior member after the latter refused to remain a member of the
undivided Hindu family and demanded his share, except, of course, in respect of dealings with third persons to whom notice had not been given of
the said junior member''s intention to terminate the agency of the managing member. If, as was argued, the English Law of joint tenancy does not
allow a joint tenant by a mere unilateral declaration to make the joint tenancy a tenancy in common so as to defeat the right of survivorship [see
Lord Hardwicke in Partriche v. Powlet (1740) 2 Atk. 54 quoted in In re Wilks; Child v. Bulmer (18 91) 3 Ch. 59, and the opinions of Lord
Thurlow and Lord Hatherly given at page 63], that rule of the English Law has, in my opinion, no relevancy in the decision of the question of Hindu
Law whether a coparcener of a joint undivided Hindu family can put an end to his status as undivided coparcener by such declaration. Even in
English Law, joint tenanoy with the right of survivorship was never favoured by Courts of equity and the increasing tendency has been to take
advantage of slight indications to convert a joint tenancy to a tenancy in common. Alienation by a joint tenant or his share to a third party severs the
joint tenancy in English Law. In Narayanasami Naidu Garu v. Tirumalasetti Subbaya (1913) M.W.N. 96, I said, ""I am of opinion that Courts
should lean against the continuance of joint tenancies and against claims of survivorship."" See page 100. ""The ancient Hindu Law knew, according
to the learned writer Mr. J.C. Ghose, no such principle as joint tenancy and no principle of survivorship....Equity also does not favour joint
tenancies and rights of survivorship."" I know it has been said that the Mitakshara recognised the principle of survivorship and joint tenancy and I
myself have, following the language used by the highest authorities, stated so. The Mitakshara first created a revolution (it may be that it sanctioned
by its authority or recognised the revolution already being effected by the then prevailing customs) by giving the sons rights by birth jointly with the
father in ancestral properties, taking advantage of the moral admonitions addressed in ancient texts to the father not to alienate his ancestral
properties so as to leave his children penniless. Then the right of the widow of a sonless coparcener to inherit her husband''s share was denied to
her and the other male coparceners were made the inheritors of that share. The whole of Chapter II, Section 1, placita 1 to 39 of the Mitakshara
which contains the ingenious special pleading by which the widow of an undivided sonless coparcener was disqualified from inheriting his share in
the estate does not contain a word about survivorship. Vijnaneswara professes to find equally authoritative texts for either view as to the rule of
inheritance, some texts recognising the right of the widow and some excluding her on the ground of incapacity to perform religious ceremonies and
he then professes to reconcile the texts by saying, not that any principle of survivorship prevents the inheritance of the widow but that the
succession itself to the undivided share of the deceased coparcener passes to the remaining coparceners. This idea of a distinction between
accretion by survivorship and the passing of property by inheritance or succession proper seems absolutely foreign to Hindu Law. I cannot but
believe that because the other coparceners were to inherit the deceased sonless coparcener''s share under the Mitakshara instead of the proper
female heir under the old texts (namely, the widow or the daughter if the widow had died) inheriting it, a confusion of ideas based upon the notion
of English Law that the surviving joint tenants get the deceased tenant''s share by survivorship was introduced into the consideration of cases under
the Hindu Law. That there are numerous differences between the joint tenancy of the coparceners in a Mitakshara Hindu family and the joint
tenancy as understood in English Law has been recognised in several cases. As Sankaran Nair, J., says in his judgment in Pothi v. Nagana Appeal
No. 119 of 1912: ""It is argued that the joint tenancy has been converted into tenancy in common. The differences between the joint tenancy of a
Hindu family and as it is understood in English Law must be borne in mind. In the former the joint tenancy has its origin in birth and not by
conveyance. There is no unity of possession, the managing member being alone entitled to it against the others. There is no unity of title as the
members do not derive their interest at the same time. There is no unity of time as they do not hold for the same time and from the same time.
There is no unity of interest as some may be entitled to larger share than others. The chief characteristic of survivorship does not exist as a
coparcener''s interest devolves, not on all the others but only on his sons, if any. A coparcener''s interest again is liable to diminution unlike the
interest of a joint tenant in English Law."" In the well known case, Appovier v. Rama Subba Aiyan (1866) 11 M.I.A. 75, Lord Westbury no doubt
said: ""Thus the joint tenancy is severed, and converted into a tenancy in common."" But he carefully added the qualifying clause ""using the language
of the English Law merely by way of illustration."" I cannot, however, help thinking (as I said before) that notwithstanding this qualifying phrase, the
idea of a right by survivorship in the remaining coparceners instead of a right by succession which is the right known to Hindu Law has coloured
the language of almost all the subsequent decisions. It seems to me therefore with the greatest respect that if a mere alienation by a coparcener
even under the English Law severs the joint tenancy so as to prevent the right of survivorship, to hold that under the Hindu Law (which knows no
such principle as the principle of survivorship and into which the principle of survivorship was introduced by a side wind as a synonym for the right
of succession of undivided coparceners to the share of a deceased coparcener) an alienation by one of the coparceners even of his entire interest
does not sever the joint tenancy seems to me inadmissible. I should, in this connection, like to fortify my opinion as to the true Hindu Law by the
following quotation from the Tagore Law Lectures of a very learned Hindu Lawyer Mr. Bhattacharyya. He says (pages 53 to 55): ""Now, we shall
see that the members of an undivided Hindu family stand very much in the same relation to one another as joint tenants under the English law do.
Each member has possession over the whole of the joint family property, and if one member dies, his right devolves upon the rest under certain
limitations. Thus we shall see that in a true joint family, that is, in a joint family governed by the Mitakshara Law, the widow of a deceased member
does not succeed har husband, to his rights, but the whole joint property remains as before subject to the title and possession of his undivided
coparceners, in a case in which the deceased member had no lineal descendant to take his place. This is the feature of a joint family governed by
the Mitakshara Law which strikes every student of Hindu Law of Succession as the most distinctive, I have no doubt that it was this peculiar
feature which at once suggested to the minds of the early British administrators of Hindu Law, the close resemblance between the joint tenants
under the English Law and the joint Hindu family under the Mitakshara Law. This is called the right of survivorship--a term unknown to the original
texts; nor do we know, nor can we pitch upon, any expression in Sanskrit which would convey the idea. This is not to be wondered at; for the
original texts do not treat much of the law relating to undivided families; the sayings of the ancient sagep, such a Manu and Yagnavalkya, directly
making mention of undivided coparceners are few; nor have the later authors, such as Vignaneswara end Vachaspati Misra, dwelt at length upon
the subject. We have at present a goodly mass of legal maxims which lay down the rights, the liabilities, the status, the obligation and the duties of
the members of a joint Hindu family; but those maxims are to be gathered from the case-law as it has been developed by the British administrators
of justice for the people of India. It consists of a number of deductions gradually made from the few principles to be obtained, generally in the
Mitakshara, and sometimes also in other authorities. The number of such authorities is not very large""....""But be that as it may, the doctrine of
survivorship, which was never put into a form or words by any writer of original texts of Hindu Law, from the Mitakshara downward, has yet
proved a powerful engine in the development of the case-law on the subject of Hindu joint families. As soon as it was observed that there was a
very tangible analogy between Hindu coparceners and English joint tenants, it was inevitable that incidents of English joint tenancy should have
been extended to the legal position of the Hindu coparceners, at least in cases where such extension did not run counter to anything to be found in
the original texts. We must remember that the judges who did this, had no other course left open to them; for they were familiar with the law of the
English joint tenancy; they saw nothing in the original texts, or in the translations, to guide them in the particular instances; certainly the most
reasonable course for them was, avowedly or not, to take advantage of that other law they were familiar with, supported as this course was by the
analogy already adverted to.
I shall now pass on to consider the two Privy Council decisions which seem to me to be almost conclusive on the question. In Ram Chunder
Dutt v. Chunder Coomar Mundul (1869) 13 M.I.A. 181 their Lordships say: ""It is true that the status of the family as a joint Hindu family was not
continuing. The alienation of the shares of two members of that family to the Munduls determined that status, and substituted the status of co-
sharers or joint owners, whose rights, as is shown by Lord Westbury in the case of Appovier v. Rama Subba Aiyan (1866) 11 M.I.A. 75, are in
many important respects distinguishable from those of a joint and undivided family."" I think this is a clear and unambiguous authority for the
proposition that an alienation by a coparcener does effect a severance of the joint status of the family so as to prevent the right of survivorship. In
the latest case Suraj Narain v. Iqbal Narain ILR (1913) All. 80, their Lordships say ""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 facts 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 wholly wanting."" I think these sentences clearly indicate that the conduct on the part of some members alone
without the consent of other members may lead to disruption and convert the joint tenancy into a tenancy in common and that the definite and
unambiguous indication of intention by one member if unequivocal and clearly expressed can amount to separation. After full consideration I am
wholly unable to accept the argument of Mr. A. Krishnaswami Ayyar for the appellant (based on an undue emphasis on the word ""may""), that their
Lordships only intended to assume for the purpose of argument that a definite and unambiguous intention unequivocally and clearly expressed may
amount to separation and that they did not intend to decide that it would amount to separation. That even an attachment of a coparcener''s share
by a simple money-decree-holder will prevent survivorship has been decided in numerous cases. See Muthusami Chetty Vs. Chinnammal, and
Thadi Ramamurthi v. Moola Kamiah (1914) 16 M.L.T. 123. Unless the joint tenancy becomes severed and converted into a tenancy in common,
by the attachment and seizure of the share of the coparcener, I think it is difficult to find a tenable basis for such decisions, mere vague references
to the equities of creditors and of alienees for value not creating in my mind any nexus between the attachment or alienation on the one hand and
the extinction of the right of survivorship on the other. Mr. A. Krishnaswami Ayyar argued that if an unilateral declaration by a coparcener
deliberately and clearly expressed to others, severs the so-called joint tenancy, it will lead to several practical inconveniences. I do not feel much
impressed by this argument. The older and purer Hindu Law was altered by the Mitakshara so as to prevent widows from inheriting their
husband''s share and it is now almost a truism with careful students of the Shastras that the older and purer sources of Hindu Law are more in
consonance with the needs of a progressing and progressive society than the rules introduced by the glosses of medieval commentators on those
texts (the glosses very often being far-fetched and even distorting the texts). Such new rules were made according to the temporary exigencies of
the times and places, a commentator belonging to one part of India or to one period of its history differing from a commentator on the same texts in
another part or in another period. The consequent degradation of the Hindu Law by the medieval commentators which led to the doctrine of rights
by birth in sons (instead of merely moral claim by birth) the doctrine of the right of a son to question alienations by his father and to the exclusion
from inheritance of most female heirs except under exceptional circumstances is being gradually got rid of through the development of the law by
the several decisions of the Privy Council and the older and purer Hindu Law is being gradually brought back. The power of the father to alienate
for antecedent debts and the power of the father''s creditor to pursue his remedy against the whole property for the father''s debts have been now
established so as to restore the earlier purer Hindu Law. The decisions of the Privy Council therefore which tend to defeat the artificially introduced
right of survivorship (introduced not even by Hindu commentators and introduced in comparatively modern times) so as to restore the purer Hindu
Law which allowed inheritance by widows and other female heirs to a deceased coparcener''s share should not, in my opinion, be attempted to be
evaded by arguments involving too fine distinctions. As G. Sirkar Sastri says in his Hindu Law, page 239 at page 240, the doctrine of the Hindu
Law is that ""partition must take place by the desire of a single member, and the others are bound to consent and agree to it."" Therefore, the
declaration by a member of his desire for partition to the other members, accompanied or followed by conduct evidencing its earnestness, must be
sufficient to cause the severance of his interests. That is all that he can do : ""if the others do not agree but obstruct his desire, and compel him to
continue to live with them for some time as before, they cannot be permitted by both law and equity to prejudice his right, and to gain an advantage
by their such wrongful omission, He should thenceforward be deemed to live with them in the same manner as a member of a joint family governed
by the Daya-bhaga, that is to say, as a tenant in common and no longer as a joint tenant.
As regards the danger of perjured oral evidence about such declarations and intentions, not only have their Lordships of the Privy Council
taken care to lay down in Suraj Narain v. Iqbal Narain ILR (1913) All. 80, that such intentions must be proved by cogent and clear evidence but
there is the Legislature which could by enacting registered documents as necessary to evidence such declarations, obviate that inconvenience.
Piecemeal legislation is no doubt not desirable but so long as the generality of the followers of Hindu Law, even in the same province are not willing
to have it ascertained by a commission and codified according to the recommendations of that commission, piecemeal legislation is the only course
open to the Legislature.
In the result, I would give the following answer to the reference, namely, that a member of a joint Hindu family becomes separated from the
other members by the fact of suing them for partition and by the unequivocal declaration made in the plaint in that suit when such unequivocal
declaration has been clearly expressed to the other coparcener or coparceners through the Court or otherwise.
Seshagiri Ayyar, J.
If the question were not concluded by the latest decision of the Privy Council in Suraj Narain v. Igbal Narain ILR (1913) All. 80, I would have
answered the reference in favour of the appellant. I feel with the learned Chief Justice that it is not competent for us to explain away the decision of
their Lordships of the Judicial Committee as suggested by Mr. Krishnaswami Ayyar. The Judicial Commissioner quoted the early Calcutta
decisions in his judgment and in the argument before the Privy Council reference was made to soma of them, Mr. Krishnaswami Ayyar contended
that their Lordships should not be understood as overruling the current of decisions in Madras without even adverting to them. But the question did
arise for decision and there was a pronouncement. Their Lordships alone can explain away their judgment, if they did not really intend to decide
the question. I, therefore, hold that the question referred to us is concluded by the authority of the Judicial Committee. However as I feel that the
texts of Hindu Law and the authorities in Madras and elsewhere are in favour of the contention of the appellant, I feel bound to state my views at
some length on the points raised before us. The question under reference has been argued with great ability on both sides.
In my opinion the weight of textual authority is in favour of the appellant''s contention. The definition of Vibhaga in the Mitakshara gives no
indication regarding the mode of effecting a partition. The Saraswati Vilasa has been claimed by both the learned Vakils for their contentions. The
chapter commencing with the twenty-second sloka is headed ""what is partition."" The author quotes Baruchi for the position that Vibhaga is the
division of wealth and of religious duties. He then points out that the definition of Vignaneswara is not comprehensive enough to include the division
of religious duties, and proceeds in slokas 25 to 27 to deal with the spiritual merits of performing separate religious duties. The conclusion on this
sub-head is stated in sloka 28, thus: ""From this it is known that without any formality, partition can be effected by mere intention, just as the making
of an appointed daughter can be effected by mere intention without any formality."" The next topic deals with persons who have wealth to divide.
The author says that in such cases partition of wealth must precede the partition of religious duties. In sloka 30, the requisites of the two classes of
division are stated, as a result of the previous discussion: ""Therefore also in the case of those who have no wealth, the separate performance of
religious duties with or even without other''s consent constitutes a partition of religious duties; but in the case of the rich, partition of wealth takes
place"" As pointed out by the learned Chief Justice in the course of the argument, the last clause seems to refer to an actual division of the
properties. I feel no hesitation in holding that the introduction of the clause ""with or even without other''s consent"" was intended to point out the
distinction between the two classes of cases. Having regard to the doubts expressed by Mr. Justice Sadasiva Ayyar during the course of the
argument, J examined the Sanskrit verses with some care, and I am clear that in the case of the partition of wealth, the consent of the co-owners is
essential. I may also refer to verse 34 which pointedly brings out the difference: ""Here the separate performance of religious duties alone of one''s
own will without consent of others for a period of ten years constitutes partition."" This sentence would be meaningless if the contention of Mr.
Srinivasa Ayyangar is to be accepted. The various slokas to which I have referred show that the author was conscious that in matters which
affected the wealth of all the co-owners, their consent must be taken, but where the religious merit is the object aimed at, as in the case of the
division of religions duties only, the consent of the others is unnecessary.
Mr. Srinivasa Ayyangar relied upon placitum 5, chapter II of Viramitrodaya, another authority accepted in Southern India. The author is there
considering whether the statement of Manu that the brothers should ""assemble together"" is mandatory or only directory, His opinion is that it is not
a rule of law, because the world assembly will not be apt to describe the meeting of only two brothers. His another reason is ""otherwise partition
could not take place at the desire of the coparcener."" This statement, it is argued, declares that in all cases partition can take place at the desire of
one of the members. What the auther meant to say was that there are instances in which partition can be effected at the desire of one of the
members: for example, the separate performance of religious duties; and consequently Manu should not be held to have enjoined that whenever
partition takes place, the brethren should assemble. I do not think that Viramitrodaya helps the solution of the problem one way or the other.
We have then, the Vyavahara Mayuka which is somewhat enigmatical. The author does not discuss the mode of partitioning wealth, In section
III, placitum 1, he quotes Naradha for the definition of partition and abruptly says in placitum 2, ""Even when there is a total failure of common
property, a partition may also then be made, by the mere declaration ''I am separate from thee''; for, a partition merely indicates a state of the
mind. Transactions relating to partition are only declaratory of this mental state"" It may be as suggested by the learned Vakil for the appellant that
the author was only dealing with religious duties; or it may be as pointed out by Mr. Mandalik in his Hindu Law that the author was influenced by
Jimuta Vahana''s opinion. It is worthy of note that in the province where this treatise is the paramount authority, there is no decided case which
accepts the view that partition of property can be effected by a bare declaration on the part of one of the co-owners.
Jimuta Vahana is explicit. His view proceeds on the theory that there is no survivorship in a joint family. ""Since any one parcener is proprietor
of his own wealth"" sums up the distinction between the two schools of law. I do not propose to embark upon the speculation whether Yagnavalkya
and his commentator really laid down that there is survivorship or joint tenancy in a joint family. It is enough to say that the essential characteristics
of Hindu Law as understood by the writers of the Benares School are survivorship and representation. So far as a cursory examination of these
treatises goes, the idea of survivorship is in entire consonance with the genius of Hindu Law as it is administered in Southern India. The case of the
Nambudri Brahmans who follow Makkathayam Law and the incidents of tarwad ownership among Nairs show that the principle of survivorship
has taken deep root in Southern India. That is not the position of those to whom the Dayabhaga applies. It is therefore perfectly clear that Jimuta
Vahana''s view is inapplicable to the Mitakshara system. Moreover students of Hindu Law must have noticed how laboriously Jimuta Vahana has
endeavoured to differ from Vignaneswara whenever possible, On an examination of textual law my conclusion is that in the Benares School, a
mere declaration of intention will hot effect a partition among co-owners.
Now I go to decided cases. Naturally the Calcutta cases come in for examination first, as it is in them that we meet with the pronouncement
that a mere declaration will suffice to effect a division of status. Before dealing with them individually, I wish to make one observation without
meaning the slightest disrespect to the eminent Judges who took part in those decisions. The Bengal Judges have to deal with two separate systems
of inheritance, the Dayabhaga and the Mitakshara. Both have to be administered to Hindus, and unconsciously the principles of one of the systems
of law get mixed up with the other. In Bulakee Lall v. Mussamut Indurputtee Kowar (1865) 3 W.R. 41, the question we have to decide was not in
issue. The point for decision was whether one of the co-sharers who had become divided from the other in interest can ravoke a power-of-
attorney jointly given by both to manage their properties. After quoting Storey on Agency, the learned Judges say ""that the parties are not in a
position substantially different from that of a joint Hindu family."" It is difficult to see how such a position is tenable. However that may be, they
proceed to apply the Mayuka to the case in question and say ""And any act or declaration, showing unequivocal intention on the part of any share-
holder to hold or enjoy his own share separately, and to renounce all rights upon the shares of his co-parceners, constitutes a complete severance
or partition."" This is purely obiter Mussamut Vato Koer v. Rowshun Singh (1867) 8 W.R. 82, was decided after the well-known case Appovier v.
Rama Subba Aiyan (1866) 11 M.I.A. 75, was decided by the Judicial Committee. The head-note to this case is not accurate. There was a
concurrence of the parceners for dividing the property and petitions for registry were presented to the Revenue authorities. The substantial
argument of the contesting defendants was that there should be a division by metes and bounds. The learned Judges held that Appovier''s case was
a complete answer to that contention. The same learned Judges decided Debee Pershud v. Phool Koeree alias Gheena Koeree (1869) 12 W.R.
They held that a previous plaint which only sought for a declaration of rights was not sufficient to constitute a divided status, but that if the suit
had been one for partition, it would have been different The second statement was unnecessary for the decision of the case Some months before
this decision was pronounced, a Full Bench had to consider this and other connected questions Curiously enough, no reference is made in the later
case to the opinion of Sir Barnes Peacock to which I shall at once refer.
In the Full Bench Case--Sadabart Prasad Sahu v. Foolbashkoer (1869) 3 Beng.L.R. 31--an undivided Hindu died leaving two widows behind
him. His creditors sued the widows for the debt due to them, attached the deceased''s share in the joint family property and purchased it in Court
auction. The surviving joint member sued to have it declared that the share did not pass to the purchasers by the Court sale The Full Bench held
that the purchaser did not acquire the rights of the deceased owner. There was a further question whether the mortgage of his undivided share
created by the deceased was binding on his share. This second question involved the consideration whether the conduct and act of the deceased
worked out a divided status. Sir Barnes Peacock says: ""I was at one time disposed to think that as one of the several members of a joint family can
compel partition of ancestral property against the will of the others (see Mitakshara, chapter I, Section 5, verse 8), so he might, without the will of
the others, alienate that share to which he would be entitled upon partition; but upon reflection I feel that that opinion cannot be maintained
according to the true principles of the Mitakshara law."" This considered opinion of the Full Bench must be taken to have overruled all previous
decisions to the contrary. Reference may also be made to the interpretation which their Lordships of the Judicial Committee placed on this
pronouncement in Madho Parshad v. Mehrban Singh ILR (1891) Calc. 157. Two of the Judges who were responsible for Mussamut Vato Koer
v. Rowshun Singh (1867) 8 W.R. 82, also sat in the Full Bench. We next come to Mussamut Phoolbas Kooer v. Lall Juggessur Sahi (1870) 14
W.R. 340. Mr. Justice MARKBY in this case does not conceal his disapproval of the ruling of the Full Bench. The Mussamut Phoolbas Kooer v.
Lall Jaggessur Sahi (1870) 14 W.R. 340, is really a minute of dissent from the Full Bench decision. The same learned Judge reiterated his views in
Raghubanund Doss v. Sadhu Churn Doss I L.R. (1879) Calc. 425. Here again the pronouncement about the mode of partition was entirely obiter,
In Radha Churn Dass v. Kripa Sindhu Dass ILR (1880) Calc. 474, Sir RICHARD GARTH goes back to the view enunciated in Bulakee Lall v.
Mussamut Indurputtee Kowar (1865) 3 W.R. 41, without adverting to the decision of the Full Bench. On the other band Mr. Justice WILSON in
Tej Protap Singh v. Champa Kalee Koer ILR (1886) Calc. 96 inclines to the view that there should be either a decree or an agreement be divide.
In two very recent cases Bata Krishna Goswami v. Gopal Krishna Goswami (1907) 5 C.L.J. 417 and Bunwari Lal v. Daya Sunker Misser (1909)
13 C.N. 815, Mookerjee, J., regards the question as still open. ID my opinion, the Calcutta decisions give us no definite guide.
In Bombay, as I said before, there is no decision which upholds the Mayuka doctrine that a bare declaration will sever the co-parcenary
status. In Mora Vishvanath v. Ganesk Vithal (1873) 10 Bom. H.C.R. 444 the learned Judges speak of a contract to divide. Babaji Parshram v.
Kashibai ILR (1880) 4 Bom. 157 goes the length of laying down that even after decree, unless the partition is by metes and bounds, the status is
undisturbed. In Murari Vithoji v. Mukund Shivaji Naik Golatkar I L.R. (1891) 15 Bom. 201, the learned Judges found ""a tacit agreement of
enjoyment according to shares,"" although if a declaration was sufficient, it would have been easy to find it In Mahadev Laxman v. Govind
Parashram ILR (1912) 36 Bom. 550, a decree for partition was relied on and not the filing of the plaint. West and Buhler in pages 680 and 681 in
dealing with ""will to effect a separation"" seem to lay-down that the assent of all the co-parceners is necessary to effect a partition. It may, therefore,
be safely stated that in the province where the Mayuka is followed, She Courts have never been asked to hold that a declaration of intention will
sever the co-parcenary in regard to joint property.
In Madras, the High Court has consistently held that the filing of a plaint does not put an end to the co-parcenary. In Sangili v. Mookan ILR
(1893) Mad. 350, the death of one of the co-parceners after suit and before decree was held not to have affected the undivided status. In
Subbaraya Mudali v. Manika Mudali ILR (1896) Mad. 345, it was laid down that a decree dissolved the coparcenary notwithstanding the filing of
an appeal against it. The learned Judges point out that until decree the co-parcenary continued. In Sudarsanam Maistri v. Narasimhulu Maistri ILR
(1902) Mad. 149, Bhashyam Ayyangar. J., expressly dissented from the view of Sir Richard Garth in Radha Churn Dass v. Kripa Sindhu Dass
ILR (1880) Calc. 474, that a mere declaration by one member is sufficient to effect a separation. There are observations to the same effect in
Aiyyagari Venkataramayya v. Aiyyagari Ramayya ILR (1902) Mad. 690. In Thandayuthapami Kangiar v. Rangunatha Kangiar I.L R.(1912) Mad.
239, the learned Chief Justice (then Wallis, J.) points out: ""Partition may be effected by consent and in proper cases by decree."" Sankaran Nair, J.,
says that the practice in this Presidency has always been in accordance with the law as laid down in Subbaraya Mudali v. Manika Mudali ILR
(1896) Had. 345. I entirely concur with this estimate of the practice obtaining among Hindus governed by the Mitakshara law. Reference may also
be made to Balakrishna Mudaliar v. Raju Mudaliar (1915) M.W.N. 17.
Before considering the decision of the Judicial Committee on the subject I shall briefly refer to the views held by the High Court and by the
Judicial Committee on certain collateral subjects which are not easily reconcilable with the theory that partition can be effected by a declaration. In
all the Courts in India, it is now settled law that a co-parcener cannot by a testamentary disposition or by gift inter vivos dispose of his share of the
joint family property. Their Lordships of the Judicial Committee have given their sanction to this position in Lakshman Dada Naik v. Ramchandra
Dada Naik ILR (1881) 5 Bom. 48 In my opinion the denial of this right is not consistent with the hypothesis that a unilateral declaration to sever
the status is enough. This view receives support from the decisions which lay down that a disposition by will or gift will be valid it the consent of the
othar co-parceners is obtained. See Indar Sahai v. Shaiam Bahadur (1913) 25 M.L.J. 57, and Parmanandas Jivandas v. Vinayek Rao Wassudeo
ILR (1883) 7 Bom. 19.
On the question of the power of a member to alienate for consideration his share of the property it is. somewhat curious that it should be
conceded in Madras and Bombay, while it is denied in Bengal. The earlier Bengal decisions enuncrating the view that a declaration of intention will
sever the joint status logically requires that the co-parcener should have power to dispose of his share This is apparently Mr Justice Markby''s
view. Their Lordships of the Judicial Committee held in Balgobind Das v. Narain Lal ILR (1893) All. 339, that an undivided member is not
competent to alienate his share in Bengal and in the United Provinces. It is significant that this restriction is said to apply to alienation without the
Consent of the co-parceners See also Madho Parshad v. Mehrban Singh ILR (1891) Calc. 157. This pronouncement lends further support to the
proposition that in dealing with co-parcenary property individual acts or declarations are of no avail, but that they would be valid if assented to by
the others interested in the property. There is only one other class of Rases to which reference may be made. It has been held in Madras that even
after alienating his share the alienor continues to be a member of the joint family. Nanjaya Mudali v. Shanmuga Mudali (1914) 15 M.L.T 186 and
Sir Venkataswetha Chalapathy Ranga Rao Bahadur and K.C.I.E. Maharaja of Bobbili and Others Vs. W.S. Venkataramanjulu Naidu and
Others, . These decisions all proceed on the theory accepted in Madras that a unilateral act is not sufficient to effect partition.
Mr. Kriahnaswami Ayyar referred to the analogy of partition among joint tenants. A coparcenary under the Hindu Law has many features in
common with joint tenancy. The principles which apply to the severance of a status of joint tenancy therefore deserve consideration,
It was held in Patriche v. Powlet (1740) 2 Atk. 54, that a declaration by one of the tenants will not put an end to the joint tenancy. In In re
Wilks; Child v. Bulmer (1891) 3 Ch. 59, it was decided that the presentation of a bill does not arrest survivorship. The filing of a plaint cannot be
in a better position. On the other hand in In re Dodson; Yates v. Morton (1908) 2 Ch 638, it was ruled that a decree would terminate the joint
tenancy. See also Freeman on Cotenancy and Partition, Section 31. I am of opinion that these decisions are applicable to determine the rights of
coparceners in India.
In my view it is not right to say that the other members are not entitled to be heard when one of them wishes to separate himself from them.
While each individual member has a right to his share the others have a contingent right by survivorship to succeed to it. It may be unreasonable to
withhold assent on this ground; but as undoubtedly the right of survivorship exists, in reason there can be no severance of the status unless they
consent, or until the Court decrees partition.
Now I shall proceed to consider the decisions of the Judicial Committee. If they are clear and definite, whatever may be my view of the law, I
am bound to follow them.
In the first of the cases decided by the Judicial Committee, Rewun Persad v. Mussumat Radha Beeby (1846) 4 M.I.A. 137, it was held that a
bequest to two brothers subject to a life estate did not create a joint tenancy, but only a tenancy in common. Further there was also a finding that
the brothers had agreed to divide, although possession did not pass. The second case is Appovier v. Rama Subba Aiyam (1866) 11 M.I.A. 75; it
has always been treated as the leading case on the subject of the mode of effecting a partition, It laid down explicitly that a division by metes and
bounds was unnecessary, and that an agreement to divide can be gathered from the acts and conduct of the parties. Their Lordships nowhere
intimate in this case that a unilateral declaration will suffice. Ram Chunder Dutt v. Chunder Coomar Mundul (1869) 13 M.I.A. 181 has given soma
trouble in understanding it. After reading it over again, I am satisfied that the severance of the status of co-parcenary among the Ghoses was not
attributed by their Lordships of the Judicial Committee to anything done by one of the brothers without the knowledge and consent of the others.
The determination of joint status and the substitution of co-ownership are not traced to unilateral acts. I do not think this case helps the respondent.
In Runjeet Singh v. Kooer Gujraj Singh (1878) 1 I.A. 9 the separate enjoyment of the income of particular portions of the family property by each
of the members was held not to constitute a divided status. Baboo Doorga Pershad v. Mussumat Kundun Koowar (1873) 1 I.A. 55 follows
Appovier v. Rama Subba Aiyan (1866) 11 M.I.A. 75, and points out that whether a course of conduct pursued by the members effected a
division in interest would depend upon the intention of the parties. The next decision Joy Narain Giri v. Girish Chunder Myti ILR (1679) Calc. 434
requires careful examination. One of the two undivided members who was expelled by the other from the family house sued for a declaration of his
right and mesne profits. He obtained a decree in the Courts below and died pending the appeal to the Privy Council. His widow was brought on
record and their Lordships confirmed the decree. The second suit was instituted by the surviving member for a declaration that the deceased died
undivided and that a will executed by him was invalid. Two propositions were laid down by their Lordships, Firstly, that the decree, though not in
terms one for partition, effectively destroyed the joint estate; secondly, the conduct of the parties showed distinctly that they regarded themselves
as divided. The following passage was relied on by Mr. Srinivasa Ayyangar: ""Their Lordships regard the conduct of Shibpershad Giri, when he left
the house in which both he and Joy Narain Giri lived, and withdrew himself from commensality with his cousin, as indicating a fixed determination
henceforward to live separately from his cousin, and they treat the fact of his borrowing money for his separate maintenance as well as his making a
will, as indicating, at all events, that he himself considered that separation had taken place. His plaint indicates that he accepts what he terms the
expulsion of his cousin from the joint family, and claims the share to which he would be entitled after that expulsion, and after a separation."" The
reference to the acceptance of the expulsion shows that in the opinion of their Lordships it was necessary that there should be an agreement
between the parties. I do not think this decision is any authority for the proposition contended for by the learned vakil for the respondent. In
Chidambaram Chettiar v. Gauri Nachiar (1879) 2 Mad. 83, there was a preliminary decree for partition and a commissioner was appointed to
ascertain the extent of the family property. The plaintiff died before a final decree could be passed. It was contended that the members remained
undivided. Their Lordships negatived this contention and said that from the date of the preliminary decree the brothers became separate in estate
If they had not previously become so."" It was argued that this last clause pointed to a leaning on the part of their Lordships to the position that the