The main legal point established in the judgment is that the severance of joint family status commences from the date of the presentation of the plaint and that the service of notice of the plaint is not a condition precedent to effect such severance.

Madhavan Nair, J.

1. Defendant 1 is the appellant. His father one Subbier filed a suit against him for partition of joint family property on 18th August 1922. The summons in the suit was served on the defendant by affixing it on the door on 16th September 1922. On 15th September 1922 (i. e., one day before the service of the summons) Subbier settled some portions of his half share of the property on two of his daughters and simultaneously executed a "will" with respect to the other properties. He died on 1st April 1924 but even by that time the suit had not been tried. The persons entitled under "the settlement" and the "will" were after contest brought on as his legal representatives as plaintiffs 2 to 6 and defendant 10 and they got a. decree for a half share of the property. The first Courts decree was confirmed on appeal by the appellate Court.

2. In second appeal it is argued that on the date of the "will" and "settlement" (that is, 15th September 1922) the father had no power to execute them as the declaration of his intention to divide contained in the plaint was not communicated to the defendant till 16th September 1922 and as he for that reason still remained a member of an undivided Hindu family at the time of the execution of those documents. In reply it is contended that by the mere presentation of the plaint for partition in a suit in which notice has been served on the defendant the plaintiff becomes divided from the other members of the joint family and that the status of division in such a case takes effect from the date of the plaint and not from the date when the notice of the suit is communicated by the Court to the defendant.

3. The question in this form has not arisen for determination in any of the Courts but there is a decision on the point in the Judicial Commissioners Court reported in Rachhpali v. Chandesardei A.I.R 1924 Oudh 252 to which I shall refer in the course of this judgment. If the appellants contention is accepted it would follow that his father had no power to execute the will and settlement in question as he was on the date when they were executed still a member of an undivided family since the notice was served on the defendant by Court only the next day after the execution of the documents, that is on 16th September 1922.

4. In considering this question it is not necessary to refer to cases earlier than the well-known Privy Council decision in Suraj Narain v. Iqbal Narain [1913] 35 All. 80 in which occurs the following passage:

The principle applicable to cases of separation from the joint undivided family has been clearly enunciated by this Board-in Revan Prasad v. Radha Beeby [1848-50] 4 M.I.A. 137 and the well-known cases of Appovier v. Rama Subba Aiyan [1866] 11 M.I.A. 75. What may amount to a separation or what conduct on the part of some of the members may lead to disruption of the joint undivided family and convert a joint tenancy into a tenancy in common must depend on the facts of each case. A definite and unambiguous indication by one member of intention to separatehim self and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed.

5. Beyond stating the principle in broad terms their Lordships of the Privy Council did not further explain what would constitute a definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty and when, that intention can be said to be unequivocal" and clearly expressed" as they were of opinion that the application of these tests must depend upon the facts of each case. Naturally enough cases arose where Courts were called upon to consider how far the general principle enunciated by their Lordships of the Privy Council would apply to the particular facts and circumstances of the case before them. Each party has relied on the observations in these cases in support of its respective contentions.

6. In Pothi Naik