The main legal point established in the judgment is the concept of division in status and reunion in a tarwad or joint family, and the need for an agreement between the parties to reunite in estate with an intention to revert to their former status of members of a joint Hindu family.

1. This appeal is by the 1st defendant in a suit in partition. The plaintiffs claim themselves and defendants 1 to 7 to constitute a tarwad to which the suit properties belong. The 1st defendant denied the existence of such a tarwad asserting the plaintiffs' tavazhi to have separated from his tavazhi when their ancestress Meenakshikutty Amma demanded partition on January 1, 1940, and claimed the plaint properties to belong to him or to his tavazhi. The Munsiff found the parties to constitute a tarwad and the plaint properties to belong to that tarwad and therefore decreed the suit. The Subordinate Judge on appeal, has affirmed him. Hence this second appeal.

2. Ext. B11, the notice issued by Meenakshikutty Amma and her mother to the karanavan on January 1, 1940, is an unequivocal demand for partition. The plaintiffs who are their descendants, were minors or unborn then. The view of the courts below is "that the persons who sent Ext. B-11 abandoned their idea of getting a partition and as such Ext. B-11 cannot be considered to have effected a division in status." This is insupportable. In law, a unilateral declaration of intention to separate communicated to the other members effects a status of division between the member so demanding and the others. The moment the communication of such intention takes place, the status of division becomes an accomplished fact. No question of pursuance or abandonment of the idea of getting a partition" is material or relevant thereafter. It follows that on January i,1940, the tavazhi of the plaintiffs became divided off from the other members of the tarwad who constituted the tavazhi or the 1st defendant though nothing further took place in pursuance of the notice aforesaid.

3. Once a tarwad or joint family has become divided the presumption is that it continues to be such unless a reunion is clearly made out. As observed by the Supreme Court in Bhagwan Dayal v. Mst. Reoti Devi A. I. R.1962 S.C. 287: "It is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status of members of a joint Hindu family. Such an agreement need not be express, but may be implied from the conduct of the parties alleged to have reunited. But the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom."

Counsel for appellant contends that as there were minor members in the plaintiff's tavazhi a reunion between the two tavazhi was impossible in law. No doubt, in Mulla's Hindu law (13th Edn. Para.344), it has been observed:

"Since a. minor is not competent to contract, it follows, that an agreement to reunite cannot be made by or on behalf of a minor"

Balabux Ladhuram v. Rukhmabai 30 I. A. 130,136 = 30 Cal. 725 cited as authority to the proposition. It surprises why a guardian cannot make an agreement on behalf of the minor. I am afraid the cited precedent of the Privy Council has not laid such a proposition. As every judicial dictum has to be understood Secundum subjectam materiam, the facts of the case that was before the Privy Council may be referred to here. Three brothers, Girdhari Lall, Kunyaram and Ladhuram, formed an undivided Hindu family. At about 1869, Kunyaram separated from his brothers. There was no direct evidence of any separation between Girdhari Lall and Ladhuram. About the time of separation of Kunyaram, Ladhuram sent his wife and infant son to reside elsewhere and a few months afterwards he joined them there, and they ail went on a pilgrimage to Prayag, where he died in 1873. Thereupon Girdhari Lall brought Ladhuram's widow and minor son, then 13 or 14 years of age, to his residence where they lived with him until his death in 1882. The questions before the Judicial Committee were whether there was a division between Girdhari Lall and Ladhuram when Kunyaram separated from the family, and secondly if they were separated was there