Omission of one item in partition decree.

Plaintiff is the appellant in this second appeal. His suit for recovery of arrears of rent by sale of the kuzhikanam and other rights of the defendant-tenant in the property described in the schedule to the plaint has been dismissed by the Courts below. The property of which the rent is now claimed was leased on kuzhikanam by the karnavan of a tarwad to the predecessor-in-interest of the defendant. As the result of the decree in a suit for partition filed under the Madras Marumakkattayam Act, VII of 1933, the members of the tarwad which granted the lease became divided. Nevertheless, the plaintiff, the karnavan of the disrupted tarwad, claimed rent from the defendant on the footing that he retained his status as karnavan to represent the members of the tarwad in respect of the property of which the rent is now claimed because this property had not been partitioned among the members of the tarwad by the decree. The defendant, tenant, resisted the claim on the ground that the property had been allotted under a maintenance arrangement to a tavazhi and that he had paid the rent to the tavazhi karnavan. He also pleaded that after the partition of the tarwad the plaintiff had no right to represent the tarwad and sue by himself for the rent due. The Courts below have accepted the latter contention of the defendant and dismissed the plaintiff’s suit. Hence this second appeal.

Mr. Achuthan Nambiar for the appellant contends that since the item of property in respect of which the rent is now claimed was left out of the partition. decree, it continues to be tarwad property and the plaintiff continues to be the karnavan so far as this property is concerned and therefore, his suit for rent was maintainable. It may be stated at the outset that the property in question was not included in the decree for partition by an accidental omission and not as the result of any concensual arrangement between the parties to the suit.

It has been held by this Court that in the case of a Malabar tarwad a severance of status is effected on the institution of a suit for partition under the Madras Mamma-katayam Act of 1933 and after such severance of status it is not open to the erstwhile karnavan to represent the tarwad and initiate proceedings in Court in respect of the tarwad so as to bind the othef members of the family who had unequivocally expressed their intention to separate, in the suit for partition.. It is open to the members of a Malabar tarwad as in the case of the members of a joint Hindu family to effect a partition by metes and bounds or to effect a severance of interest in respect of a part of the joint estate retaining their status as a tarwad or as a joint family and holding the rest of the properties as the properties of a tarwad or an undivided Hindu family. This is in accordance with the decisions of the Judicial Committee in Appovier v. Ramasubba Aiyar1and Ramalinga Annavi v. Narayana Annavi2, and of this Court in Ramanathan Chettiar v. Ramanathan Chettiar3. The mere fact that the members of a joint Hindu family divided among themselves a portion of the family assets does not by itself create, or imply a division in status among them and such intention to become divided in status must appear from the terms of the document effecting a partition, see Appavu v. Manickam4, In Muthuswami Mudaliar v. Nallakulantha Mudaliar5, it was held by this Court that where a portion of joint family property is reserved for a future partition without any division of any kind, the previous coparcenary continued quoad the property in question. In Gaurishankar Parabhuram v. Atmaram Rajaram6, it was held that the circumstance that there has been a partition between the members of a joint Hindu family does not, in the absence of any special agreement between them alter their rights as to the property still undivided. As to this they continue to stand to one another in the relation of members of an undivided Hindu family. The decisions in Dagadu Govind v