An unequivocal declaration of intention to be separate creates a divided status in a Hindu joint family, and disruption of the joint status tantamounts to partition within the meaning of the relevant statute.

1. These are appeals presented by the 52nd defendant in O.S. 105 of 1108 on the file of the District Court of Quilon. That was a suit for partition in a Malabar tarwad consisting of 46 members at the time of the action, one of whom was the plaintiff and the others were defendants 1 to 45. The 46th defendant is the wife of the 1st defendant who died pending the suit. Defendants 52 to 57 are their children. The 1st defendant contended, inter alia that there was no undivided tarwad as alleged in the plaint because, by means of an Udampadi of the year 1074 the tarwad got divided into 3 groups, that those three groups were in possession and enjoyment of properties allotted to them separately and that those groups thereafter conducted themselves as though there was no community of property as between them. Defendants 1 to 9 who formed one of the three groups divided as between themselves in the year 1096 and the 1st defendant separated as a single member. The properties in his possession were, therefore, claimed as exclusively belonging to him. Various facts and circumstances were adverted to in the written statement calculated to confirm the case set up by the 1st defendant of the disruption of the family even from the year 1074. Defendants 2 to 5 filed a written statement on the lines of the one filed by the 1st defendant. Defendants 6 to 9,11 to 29 and 32 to 45 filed separate written statements. Only two members, viz. defendants 10 and 31 did not enter appearance, but they formed members of thavazhies or groups who field the aforesaid written statements.

2. The plea of prior partition having been found against and a preliminary decree for partition passed by the lower court, the widow and children of the 1st defendant as his legal representatives appealed to the erst-while Travancore High Court but without success. They, therefore, applied in the court below for the share of the deceased 1st defendant being allotted to them as his heirs under the Nair Act. The Court below disallowed the prayer on the ground that the 1st defendant had not claimed his share in his written statement. A.S. No. 518/24 is against that order.

3. The 1st defendant claimed to have improved the properties in his possession at his expense. His widow and children prayed in the court below that at the partition the value of the said improvements may be ascertained and given to them. This claim was disallowed by the Court below on the ground that a karnavan of a tarwad effecting improvements upon tarwad properties in his possession is disentitled to claim value therefor. A.S. 561/1124 is against that order.

4. The rule that a member of a Hindu joint family becomes divided in status on his expression of an unequivocal declaration of intention to get severed from the other members will have the effect of creating a division in status as between him and the rest of the members of the family has been applied to Malabar tarwads after compulsory partition was provided by statute. The 1st defendant could, on the date of his written statement, admittedly claim a share and therefore was entitled by a declaration to create a divided status as between himself and the other members of the tarwad. A plaint in a suit for partition has been held sufficient to create a division in status.

"If upon a proper construction of a written statement it contains an expression of such a fixed desire to sever, there is no reason why it should not effect a separation in the same manner as a plaint in a partition suit does".

Mayne on Hindu Law & Usage, 11th Edn. p. 552.

5. We perused the written statement carefully and we are clearly of opinion that the 1st defendant has therein expressed an unequivocal declaration that he is no more joint with any other members of the tarwad which, according to him, had ceased to exist for over 30 years. This is enough to create a divided status. Upon a proper construction of the written statement no conclusion is possible except that the 1st defen