Judgement

Appeal (No. 107 of 1933), by special leave, from a decree of the High Court (May 1, 1930) modifying a decree of the Subordinate Judge of Kumbakonam (October 25, 1924).

The main question in this appeal was whether a deed dated November 25, 1895, by which a partition was effected between one Balasubrahmanya Odayar and the other members of a joint and undivided Hindu family governed by the Mitakshara law likewise effected a severance of interests amongst such other members. The appellant, Purnananthachi, the widow of a deceased coparcener named Sivaswami, claimed to be entitled to a one-fifth share of the joint family properties.

The facts and the relevant terms of the partition deed appear from the judgment of the Judicial Committee.

The Subordinate Judge held that the deed did effect a division in status amongst the members of the joint family.

On appeal, the High Court (Beasley C.J. and Curgenven J.) were of opinion that the deed did not effect a severance of interests amongst the members other than Balasubrahmanya.

1936. July 6, 7. H. Rashid for the appellant.

Sir Thomas Strangman for respondents 4, 5 and 8.

J. M. Parikh for The Official Receiver, West Tanjore, as representing the estate of T. S. Ramabhadra Odayar.

July 27. The judgment of their Lordships was delivered by

SIR SHADI LAL. On November 25, 1895, the male descendants of one Sepperumal executed a deed, by which Balasubrahmanya, a grandson of Sepperumal, separated from the other members of the joint family on receiving one-fifth share of the family estate. In lieu of that share, the immovable properties specified in list B mentioned in the third clause of the deed were allotted to him. There was admittedly a complete partition between him on the one side and the remaining members of the family on the other side, both in title to, and in physical possession of, the property. What was the status of the other members inter se ? Did they constitute a coparcenary, or were they divided in estate? Now, cl. 3 of the deed provided that they were to get the immovable properties specified in list A, and the out standings detailed in list C. But these properties were not partitioned amongst them.

The rule is, however, well established in Appovier v. Rama Subba Aiyan that (( 1866) 11 Moo. I. A. 75, 90.) " when the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with ; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided."

The question is whether the share of each member was defined, though the property itself was not partitioned by metes and bounds. The determination of this question depends

Law. Rep. 63 Ind. App. 436 ( 1935- 1936)

Purnananthachi V. T. S. Gopalaswami Odayar 164

upon the interpretation to be placed on the terms of the document. Now the first clause of the deed not only gives a one-fifth share to Balasubrahmanya, but also states that the remaining four-filths of the estate will be divided in five equal shares, each of which will be given to each of the five groups of the other members named therein. There can be no doubt that if it was intended that this clause should take effect immediately, there would be a division of their interests in the estate, and they cannot be held to be coparceners subject to the rule of survivorship. The definition of their shares would effect a severance of the joint status, and convert the joint tenancy into a tenancy in common.

The deed, however, shows that Muthu, who was the senior member of the family, was anxious that there should be no disruption of the joint family, and that the members other than Balasubrahmanya should r