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1917 Supreme(Mad) 263
IN THE HIGH COURT OF MARAS
Wallis
Palaniammal
Versus
Muthuvenkatachala Maniagarar
Decided On : 29 August, 1917
The filing of a suit for partition by one co-parcener does not necessarily effect a severance of status of all the co-parceners.
Headnote:
JOINT FAMILY PROPERTY - PARTITION - FILING OF SUIT FOR PARTITION - SEVERANCE OF STATUS - EFFECT OF - DECREE FOR PARTITION - EFFECT OF - SUBSEQUENT AGREEMENT BETWEEN COPARCENERS - EFFECT OF - COMPROMISE - VALIDITY - BINDING NATURE ON MINORS.
Fact of the Case:
The plaintiffs, members of a joint family, filed a suit for partition of the suit properties, alleging that they were entitled to a share in the properties as joint family property. The defendants, descendants of the eldest son of the purchaser of the properties, contended that the properties were impartible and that the plaintiffs had no right to a share. The plaintiffs' ancestor had filed a suit for partition in 1843, but the suit was withdrawn after a razinamah was entered into between the plaintiffs' ancestor and the eldest son of the purchaser. In 1849, one of the co-parceners filed a suit for partition and obtained a decree for his share. The plaintiffs contended that the filing of the suit for partition by their ancestor in 1843 operated as a division in status of all the co-parceners, and that the decree in the suit filed in 1849 effected a division in status between the senior co-parcener and the plaintiffs' branch.
Finding of the Court:
The court held that the filing of a suit for partition by one co-parcener does not necessarily effect a severance of status of all the co-parceners. The court further held that the razinamah entered into between the plaintiffs' ancestor and the eldest son of the purchaser in 1843 did not evidence an intention on the part of the plaintiffs' ancestor to cut himself and his branch off from the joint family. The court also held that the decree in the suit filed in 1849 did not effect a severance of status between the senior co-parcener and the plaintiffs' branch. The court further held that the compromise entered into between the plaintiffs' father and the other co-parceners was not binding on the plaintiffs as it was not a bona fide compromise and was entered into by their father under coercion and undue influence.
Issues: 1. Whether the filing of a suit for partition by one co-parcener effects a severance of status of all the co-parceners? 2. Whether the razinamah entered into between the plaintiffs' ancestor and the eldest son of the purchaser in 1843 evidenced an intention on the part of the plaintiffs' ancestor to cut himself and his branch off from the joint family? 3. Whether the decree in the suit filed in 1849 effected a severance of status between the senior co-parcener and the plaintiffs' branch? 4. Whether the compromise entered into between the plaintiffs' father and the other co-parceners was binding on the plaintiffs?
Ratio Decidendi: 1. The filing of a suit for partition by one co-parcener does not necessarily effect a severance of status of all the co-parceners. (See paragraph 1) 2. The razinamah entered into between the plaintiffs' ancestor and the eldest son of the purchaser in 1843 did not evidence an intention on the part of the plaintiffs' ancestor to cut himself and his branch off from the joint family. (See paragraph 6) 3. The decree in the suit filed in 1849 did not effect a severance of status between the senior co-parcener and the plaintiffs' branch. (See paragraph 6) 4. The compromise entered into between the plaintiffs' father and the other co-parceners was not binding on the plaintiffs as it was not a bona fide compromise and was entered into by their father under coercion and undue influence. (See paragraph 28)
Final Decision: The court dismissed the appeal with costs of 1st and 2nd respondents and 5th to 7th respondents.
Wallis, C.J.
1. This Appeal appears to me to be quite unarguable on the question of the compromise, and I confine myself to the question whether the plaintiffs are entitled to partition of the suit lands as joint family property. The view taken in this Presidency prior to the Full Bench decision in Soundararajan v. Arunachalam Chetty (1915) I.L.R.39 M. 159 : 29 M.L.J. 8l6 was that, while every coparcener had, a right to partition, actual severance was only effected either by agreement of the coparceners or by a preliminary decree in a suit for partition. The Full Bench felt bound to abandon that view in deference to the observations of their Lordships in Suraj Narain y, Ikbal Narain (1912) L.R. 40 I A. 43 : 24 M.L.J. 345 : 35 A. 80 and that they interpreted that decision correctly appears from the subsequent decision of their Lordships in Girjabai 1 Sadashiv Dhundiraj (1916) L.R. 43 I.A. 151 : 31 M.L.J. 455 : 43 C. 1031 which must be taken as finally settling the question, Kawal Nain v. Prabhu Lal (1917) L.R. 44 I.A. 159 : 33 M.L.J. 42 : 39 a 496. In Girjabai v. Sadashiv Dhundiraj (1916) L.R.43 I.A. 151 at p. 160 the cases are said "to establish clearly that separation from the joint family involving the severance of the joint status so far as the separating member is concerned, with all the legal consequences resulting there from, is quite distinct from the de facto division into specific shares of the property held until then jointly. One is a matter of individual decision, the desire on the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined or unspecified share separately from the others without being subject to the obligations which arise from the joint status; whilst the other is the natural resultant from his decision, the division and separation of his share, which may be arrived at either by private agreement among the parties or on failure of that by the intervention of the Court". There are however two observations which I wish to make on this with reference to the facts of the present case. As stated earlier in the judgment " separation which means the severance of the status of jointness is a matter of individual volition," and it has been ruled by their Lordships in accordance with these principles that the filing of the plaint in a suit for partition is sufficient to effect a partition. I do not understand this ruling to mean the effect of filing such a plaint is necessarily final. Treating the matter as one of individual volition, it seems to me that it is open to a co-parcener who has filed a plaint for a partition to abandon that intention before the suit has proceeded to a decree and to elect to continue in a state of jointness. The reason for so holding is all the stronger in this part of India where the filing of a plaint for partition was not understood as of itself effecting a severance. Secondly, as to the effect of severance by one co-parcener or the other co-parceners, it is well settled that, when one co-parcener severs himself from the joint family, the other co-parceners may remain united inter se, as was recognised by their Lordships in Ram Pershad Singh v. Lakhpati Koer (1902) L.R. 30 I.A., 1 : I.L.R. 30 C. 231, and Balabux Ladhuram v. Rukhmabai (1903) L.R. 30 I A. 130 1903. The observation in the latter case that there is "no presumption, when the one coparcener separates from the others, that the latter remain united" was a general one, and cannot, in my opinion, be read as affecting the presumption that the other co-parceners remain united at any rate in this part of India where all that is shown is that one co-parcener has severed himself and had his share allotted to him. In this state of things it is usual in this part of India for the other co-parceners to go on living as before, and I entirely agree with what my learned brother with his greater experience of the habits and customs of his countrymen has said upon the subject. See also Ra
