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9. And again:-

It remains therefore to decide, whether, as claimed by the plaintiff, Harihar alone, despite the wishes of the other co-parceners, could, by setting up an intention to separate followed by a demand for partition, convert his joint share into a tenancy in common, so as to destroy the defendants' right of survivorship therein; his title as co-parcener, raid the extent of his share being admitted by the defendants. If this is the law, then the plaintiff mutt succeed. If, on the other hand, agreement between all the co-parceners in pursuance of an intention to divide was necessary to cause the severance of interest claimed by the plaintiff, then the appeals of the defendants now before us must prevail.

20. But as the question of the effect on the joint status of such an intention has been raised in this case in a direct and concrete form, their Lordships think it fit to discuss the principle somewhat more fully than was necessary in Pandit Suraj Narain v. Pandit Ikbal Narain.

21. In the Hindu law, " partition" does not mean simply division of property into specific shares; it covers, as pointed out by Lord Westbury in Appovier's case, both "division of title and division of property." In the Mitakshara, Vijnyaneshwara defines the word vibhaga which is usually rendered into English by the word " partition," as the " adjustment of divers rights regarding the whole by distributing them in particular portions of the aggregate." Mitra Misra explains in the Viramitrodaya the meaning of this passage : he shows that the definition of Vijnyaneshwara does not mean exclusively the division of property into specific shares as alone giving right to property, but includes the ascertainment of the respective rights of the individuals, who claim the heritage jointly. He says (Sarkar's Translation, Chap. I, Section 36): " For partition is made of that in which proprietary right has already arisen, consequently partition cannot properly be set forth as a means of proprietary right. Indeed, what is effected by partition is only the adjustment of the proprietary right into specific shares." The Viramitrodaya is a commentary on the Mitakshara, the value and importance of which have been repeatedly recognised by the Board. So far as their Lordships are aware, nowhere in the Mitakshara is it stated, that agreement between all the co-parceners is essential to the disruption of the joint status or that the severance of rights can only be brought about be the actual division and distribution of the property held jointly. If this were so and there were minors in a joint undivided family, partition would be impossible until they had all attained majority, a position which is expressly combated and negatived in the Viramitrodaya (Chap. II, XXIII). In fact later writers leave no room for doubt that " separation" which means the severance of the status of jointness is a matter of individual volition. For example, Nilkantha, the author of the Vyavahara Mayukha (Chap. IV, Section iii, Mandlik's Translation, p. 38), expressly lays down that "even when there is a total absence of common property a partition is effected by the mere declaration ' I am separate from thee,' for partition is but a particular condition of the mind, and this declaration is indicative of the same." The Sarasvati-Vilasa gives expression to the same view. After quoting the definitions of various earlier writers, it says : " from this it is known that without any formality, partition can be effected by mere intention " (Setlur's translation of Hindu Law Books on Inheritance, p. 122). Their Lordships are aware that the Vyavahara Mayukha is not recognised as an authority in the Benares school; they refer, however, to the dictum of Nilkantha as showing the general conception of Hindoo legists on the subject of severance from jointness. But the following gloss in the Viramitrodaya appears to their Lordships conclusive on the rule of law under the Mitakshara : " Here again/' it says, " partition at the desire of the sons," which expression includes grandsons and great grand-sons (see Section 23A). " whether in the lifetime of the father or after his demise, may take place by the choice of a single co-parcener since there is no distinction". ( chap. II, Section XXIII).

30. As early as 1867, shortly after the judgment of the Judicial Committee in Appovier's case, Mr. Justice Kemp, one of the most eminent Judges of the Calcutta High Court, sitting with Mr, Justice Glover, in Mussamut Valo Koer v. Rowshun Singh (1866) 8 W. R. 82, a case governed by the law of the Mitakshara, expressed himself thus on this question of separation;-

Taking, then, the admitted facts of the case before us, we find that Sohun did publicly and unequivocally by petition presented in Court declare his intention to become from that date divided in estate. Such an intention amounts to a valid separation, though not immediately perfected by an actual partition of the estate by metes and bounds. The acts and declarations of Sohun Singh, showing an unmistakable intention to hold and enjoy his own estate separately and to renounce all rights upon the shares of his co-parceners, constitute, in our judgment a complete severance or partition.

31. With that view of the law their Lordships entirely concur. In the present case, Harihar, the husband of the appellant, unequivocally and unmistakably manifested his intention to separate himself from the defendants, and to hold, possess, and enjoy his unquestioned interest separately from them. In their Lordships' judgment, this was sufficient, under the Hindu Law, to constitute a separation and to divide him in estate from his co-parceners.

32. Their Lordships are accordingly of opinion that the decrees of the Judicial Commissioners should be reversed, and those of the District Judge should be restored.