Judgement

Appeal from two judgments and decrees of the Judicial Commissioners (July 25, 1912) reversing an order (January 23, 1911) and a judgment and decree (April 8, 1911) of the District Judge of Nagpur.

The appellant was the widow of one Harihar, a member of a joint Hindu family governed by the Benares school of the Mitakshara law. Under circumstances which appear from the judgment of their Lordships, Harihar in 1908 instituted a suit against the other members of the joint family for partition of the joint estate, and for the separate allotment to him of a one-third share thereof. The defendants (the respondents and one Dhundiraj, since deceased) by their written statement admitted the plaintiffs right to a partition and that he was entitled to a one-third share.

On March 9, 1909, the suit came on for hearing before the District Judge, who recorded that the plaintiffs right to partition and the extent of his share were not denied ; he, however, adjourned the case for the attendance of the parties in order to determine how the actual partition should be effected. Further adjournments took place in order that the parties might come to an agreement. Meanwhile, on June 17, 1909, Harihar died, leaving his widow, the appellant, his sole heiress him surviving. The appellant applied that her name should be substituted as plaintiff, to which the defendants objected, contending that Harihars rights had passed to them by survivorship and that the suit had abated. The parties filed written statements alleging and denying, respectively, that Harihar had unequivocally communicated to the defendants his intention to separate, and issues were framed.

On January 23, 1911, the District Judge directed that the appellants name should be substituted as plaintiff. He found that Harihar had before the suit signified to the defendants his unequivocal intention to separate, and held that he must be considered as separate in estate.

The suit was heard on April 8, 1911, when the District Judge made a preliminary decree declaring the plaintiffs right to a one-third share and directing a partition. The order substituting the appellant and the subsequent decree were set aside upon appeal to the Court of the Judicial Commissioner. The learned judges agreed with the finding of fact that Harihar had communicated to the defendants in unequivocal terms his desire to convert his estate from a joint estate into an estate in severalty. After considering the authorities they expressed their view of the law applicable as follows " Except in the special case of a father severing from his sons, partition of property unaided by the Court among the members of a joint Hindu family governed by the Mitakshara can only be effected by agreement among all the coparceners concerned whereby at least they declare their intention to separate..... That a declaration of such intention by any fraction of the coparcenary body, or the mere demand by any member for partition of his share, does not of itself disrupt the family estate or destroy the right of survivorship."

April 6. Sir R. Finlay, K.C., and Dunne, for the appellant. There are concurrent findings that Harihar had unequivocally intimated to his co-sharers an intention to separate. A separation of estate and a termination of the joint status was thereupon effected, although it remained to partition the estate by metes and bounds.

This was clearly laid down by the Board in Suraj Narain v. Ikbal Narain (( 1912) L. R. 40 Ind. Ap. 40, 45.), decided subsequently to the decree now appealed from. Even if the consent of all the co-sharers was necessary, the other members by the pleadings admitted that Harihar was entitled to partition.

De Gruyther, K.C., and Parikh, for the respondents. A member of a Mitakshara joint Hindu family cannot break up the coparcenary merely by declaring his intention to separate. To effect a separation there must be either an agreement by all the members or a decree. The decision of the Board in Pirth