Severance in status taking place.

There is an appeal by the defendants and a memorandum of cross-objections by the plaintiffs against the decree of the Subordinate Judge of Rajahmundry in the suit O.S. No. 126 of 1947 for partition. The first defendant is the father of plaintiffs 1 to 3. Plaintiffs 2 and 3 are minors represented by their next friend and brother the first plaintiff. They are the sons by the deceased first wife of the first defendant, and the second defendant is the second wife of the first defendant. The third defendant is the son of the first defendant, born on 15th November, 1947, during the pendency of this suit which was instituted on 13th March, 1947. The suit was preceded by a notice of 1st December, 1946, Exhibit B-1, issued on behalf of the plaintiffs by their pleader, in which they claimed a partition of the family properties into four shares and for delivery of possession of three out of them to the plaintiffs. In the suit, the plaintiffs claimed a division of the properties specified in A, B, C and D schedules into four equal shares and for allotment of three shares to the plaintiffs and also for recovery of profits of Rs. 1,360 for 1946. The first defendant, the father, claimed in the suit certain items of property comprised in A, B, C and D schedules as self-acquisitions in which the plaintiffs were not entitled to any share. Those items are specified in issue 4 in the suit. He further resisted the suit on the ground, that the partition of the properties was not in the interests of the minor plaintiffs 2 and 3, and that the status of the family was not divided on 1st December, 1946, the date of the notice and that it continued undivided till the filing of the suit.

It was found by the trial Court that the items claimed by the first defendant as his self acquisitions were in fact joint family properties, as they were acquired from out of the nucleus of the ancestral property which came into the hands of the first defendant consequent on the partition between him and his brothers in 1931, as evidenced by the registered partition deed, Exhibit A-1. He, however, found that with reference to item 13 of D schedule, an outstanding due to the family, that it was a bad debt and therefore it was not available for partition. On issue 2 he found that the interests of the father were undoubtedly adverse to that of the minor plaintiffs 2 and 3, and that in fact his whole conduct established that he was acting hostile to the interests of the minor plaintiffs. He therefore found that the partition of the family properties was undoubtedly in the interests of and for the benefit of the minor plaintiffs. These two findings were not challenged by the first defendant, in the appeal. The plaintiffs, however, claimed in their memorandum of cross objections that even if item 13 of D schedule is a bad debt, the Subordinate Judge should have divided it and should have given a direction to that effect in the preliminary decree. As regards the division in status, as the first plaintiff was an adult coparcener on the date of Exhibit B-1, the learned Judge found that it had effected an immediate severance in status from 1st December, 1946, so far as he was concerned. It was claimed by the first defendant that the third defendant who was born on 15th November, 1947, during the pendency of the suit was in fact in his mother’s womb even on the date of the notice, and that therefore even if there was a division in status so far as the first plaintiff was concerned which would take effect from 1st December, 1946, it is of no consequence and that the property should be divided into five equal shares taking into consideration the right of the third defendant also. In the alternative, it was contended that even if he was not in his mother’s womb on that date, the notice issued by the first plaintiff on behalf of himself and on behalf of his minor brothers, was in any event ineffective to bring about a division in status so far as plaintiffs 2 and 3 were concer