The judgment emphasizes that the communication of intention to separate is an essential part of the unilateral declaration of the intention to separate under Hindu Law, and the severance of status relates back to the date when the intention was expressed, with limitations on disturbing vested rights or settled titles.

1. The appeal arises out of a suit for partition; and the sole question for consideration is whether the plaintiff-appellant is not entitled to maintenance. The lower court has refused to award maintenance to him on its finding that he had waived his claim for the same.

2. In fact, there is no plea of waiver in the written statements of the contesting respondents, the 2nd defendant and the 14th defendant; nor does it appear in the written statements of any of the other defendants. Nor is there an issue regarding waiver. The lower court has however drawn the inference of waiver from the so-called admissions made by the plaintiff in the witness box. He admits that though he was living away from the tarwad house, he did not send any letter demanding maintenance; that his separate income was sufficient for the maintenance of his wife, child and himself; that he was actually saving about Rs. 200/- per month; and that no member of the tarwad living outside did ever make any claim for maintenance. From the mere delay or omission to claim maintenance no inference of waiver can be drawn. Nor is the possession of separate income by a junior member a ground for refusing maintenance to him. Again, where waiver is neither pleaded, nor an issue raised thereon, waiver cannot be presumed. (Vide Ammalukutty Amma v. Ramunni Menon: AIR. 1934 M. 509; Panchakshara Chetty v. Pattammal: AIR. 1927 M. 865 and Dandamudi Ramarayudu v. Dandamudi Sitalakshmamma: AIR. 1937 M. 915). Therefore, the refusal of the lower court to award maintenance to the plaintiff on the finding that he waived his claim is clearly wrong. The amount claimed is also not excessive, considering the income and status of the tarwad and the number of members therein.

3. Objection is then taken that the plaintiff should not be awarded maintenance after his severance of status in 1950. If so, he will have to be given his share of the profits of the tarwad properties. That is evidently more than the amount of maintenance claimed; and therefore, we do not think that this contention need be seriously considered.

4. There is a memorandum of cross-objections by respondents 2,10,17 & 18. Two points are raised in this memorandum; one is against the share awarded to the 1st defendant; and the other is directed against the share decreed to the plaintiff. Each of these two persons is given one share out of 46; and it is this that is being challenged in the memorandum of cross-objections. The other members are given one share each out of 52 of the balance.

5. The 1st defendant issued Ex. A-1 to all the members of the tarwad on 12th October 1950 when there were only 46 members in the tarwad; and the recitals therein clearly expressed his intention to separate from the tarwad. Therefore, the objection against the share awarded to the 1st defendant has no substance.

6. The plaintiff sent the reply, Ex. B-1, to Ex. A-1 on 26th October 1950 to the 1st defendant. Therein he unequivocally said that he was separate from the date of receipt of Ex. A-1. But the contention of the cross-objectors is that since Ex. B-1 was not communicated to all the members of the tarwad or at least to the managing member or karnavan, it could not have created any severance in status; and therefore the severance could have resulted only on the filing of the suit.

7. There is a line of decisions which take the view that a member who wants to separate from a joint family need not communicate his intention to separate to the other member or members of the family and need only declare his unilateral intention in a legally valid form. The Full Bench decision of this Court in Lekshmikutty Amma v. Madhavan Pillai (1957 K.L.T. 1196) considers several decisions of different High Courts and some decisions of the Privy Council laying down this principle and applies that to a case of a marumakkathayam tarwad. In the recent decision of the Supreme Court in A. Raghavamma v. A. Chenchamma (A.I.R.1964 S.C.136) it is laid down that a m