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Palaniammal vs Muthuvenkatachala Maniagarar And Ors. on 29 August, 1917 cites

Sri Raja Viravara Thodhramal Rajya ... vs Sri Raja Viravara Thodhramal Surya ... on 7 April, 1897

This document is similar to the document which their Lordships of the Privy Council had to consider in Sri Rajya Lakshmi Devi Garu v. Sri Raja Surya Narayana Dhatraju Bhadur Garu (1897) I.L.R. 20 Mad. 256 and their observations in dealing with the two documents in that appeal to the effect that the terms evidenced nothing more in substance than an arrangement for the mode of enjoyment of the property and were quite consistent with the legal character of the property as it stood on the date of the document will, I think, equally apply to the present case. Their Lordships were dealing with partible estate which one of the parties, wanted to treat as impartible estate. In the present case, although the decree of the Zillah Court declared that the estate was partible, the parties to Exhibit I wanted to give the go-by to that declaration and to impress impartibility on the Zemin. The fact that the parties could not legally do so is immaterial as we have to consider the document in the light of what the parties intended to do. If the parties treated the estate as impartible and entered into that arrangement. I think the document should be considered with due regard to the basis on which they acted and the object they had in view. That there was no. intention to create a divided status between them appears from the fact that Exhibit I expressly makes a sum payable under it for maintenance by the Zemindar in possession of the estate to his brothers and that there are no words in Exhi bit I similar to the concluding portion of the recital in Exhibit B and nothing to indicate clearly that the parties intended to sever their status as co-parceners. It is also significant that although Exhibit I was filed in the Sudder Court, no claim was made by the then senior member in whose favour it was executed that by virtue of Exhibit I he had acquired the share which the plaintiffs great-grand-father would have been entitled to under Hindu Law. The document was evidently treated as a maintenance deed and not one conveying a share of the estate. Similarly in the proceedings (Exhibit F) it was not alleged by the "Zemindar" that owing to Exhibits I and III he had become solely entitled to the shares of those two co-parceners. The concluding sentence in Exhibit I that the eldest brother and his heirs should be entitled to the gains and be liable for the losses of his brothers' pangu (share) might, if it stood alone, suggest that the brother in lieu of a fixed maintenance gave up all rights to a share, but it must be read in the light of the recitals in the previous portion of the document, and I think all that the words mean is that the amount of maintenance payable to the executant should neither be increased nor decreased by reason of the income of the estate either increasing or diminishing. Having regard to the above facts, I do not think any argument, can be founded on the fact that the members of the first branch continued in exclusive possession as the very object of Exhibit I was to enable them to do so. Difficulties only arose when that branch became extinct
Madras High Court Cites 0 - Cited by 12 - Full Document

V. Rangasami Naidu And Anr. vs Sundarajulu Naidu And Anr. on 18 April, 1916

440 and the observations of Srinivasa Aiyangar, J. in Rangasami Naidu v. Sundararajulu Naidu (1916) 31 M.L.J. 472. Moreover, under the Mitakshara it is only certain specified relations that can re-unite. I think it is hard upon the remaining co-parceners who never intended to separate to alter their position by importing the doctrine of re-union and prejudice their position materially simply because one member of the family chooses to separate himself from the family by receiving his share.
Madras High Court Cites 4 - Cited by 7 - Full Document

Soundararajan (Minor By His Mother And ... vs T.R.M.A.R.R.M. Arunachalam Chetty ... on 14 October, 1915

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 co-parceners or by a preliminary decree in a suit for partition.
Madras High Court Cites 24 - Cited by 27 - Full Document

Musammat Girja Bai vs Sadashiv Dhundiraj on 19 May, 1916

In considering the decree Exhibit D and the effect of the various recitals in the documents and the intention of the parties who entered into the various transactions so far, as their status was concerned, it should be borne in mind that till the recent decision of the Privy Council in Girja Bai v. Sadashiv Dhundiraj (1916) I.L.R. 43Cal. 1081, the view current in the Madras Presidency was that, to effect a division of status between the members of a joint family, a mere unilateral declaration or the filing of a suit for partition was not sufficient and that there should be either the consent of all the co-parceners or a decree of Court, either preliminary or final, putting an end to the cq-parcenary.
Bombay High Court Cites 1 - Cited by 140 - Full Document

Suthersanam Maistri vs Narasimhulu Maistri And Anr. on 20 September, 1901

19. It has been argued that whatever the effect of the proceedings in the Sudder Court which ended in the decree (Exhibit D) may be, there was a clear decree for partition in favour of one of the grandsons of the propositus in the proceedings in the suit which led to the decree (Exhibit E) being passed by the Zillah Judge and that at least from the date of that decree all the co-parceners should be treated as members of a divided family as the severance of one member from the joint family effects a severance between all the other members intense. The question as to how far the separation of one member necessarily involves the separation of the rest is not free from difficulty. It very often happens that in undivided families in Southern India, consisting of several members, one of them (who is often a spendthrift) either separates himself from the family after receiving his share or is cut off from the family by the other members after giving him his share. The other members of the family go on just as before and nobody ever dreams that there has been a division of status as between those who continue in the family. The observation of Bashyam Aiyangar, J. (who as the leading vakil in Southern India for several years had an intimate knowledge of the details of the joint family system) that "according to usage and custom (in this Presidency) the remaining members of an undivided family from which one or more alone have become divided, continue as an undivided family in its normal state" is obvious to any body who has any knowledge of the joint family in Southern India. The legal effect of separation of one member of the family on the status of the rest was considered by Mr. Justice Bhashyam Aiyangar in Sudarasanam Maistri v. Narasimhalu Maistri (1901) I.L.R. 25 M. 149 and the following observations show the state of the law in this Presidency prior to the decision of the Privy Council in Balabux Ladhuram v. Rukhmabai (1908) L.R. 30 I.A. 180. "
Madras High Court Cites 10 - Cited by 24 - Full Document

Rajender Dutt vs Sham Chund Mitter And Ors. on 21 May, 1880

8. It is unnecessary to consider how far Exhibit I regarded as an agreement not to partition could have been enforced between the parties to it. It is, I think, clear that, after the failure of the senior co-parcener's branch, it cannot operate to prevent the plaintiffs from suing the other members of their branch including the 2nd and 3rd defendants and the rest of the joint family for partition. Rajender Dutt v, Sham Chund Mitter (1880) I.L.R. 6 Cal.
Calcutta High Court Cites 2 - Cited by 12 - Full Document

Subbaraya Mudali vs Manika Mudali And Ors. on 27 March, 1896

149, and Subraya Mudali v. Manika Mudali (1896) I.L.R. 19 Mad. 345, Even assuming that a unilateral declaration was then thought to be sufficient, the question is whether the documents above referred to by me show that the great grand-father of the present plaintiffs during the course of the proceedings in the Zillah Court in 1846 and Sudder Court in 1849 or when he executed Exhibit I in 1847 unequivocally and unmistakably manifested his intention to separate himself from the elder branch. As regards Exhibit A the decree of the Zillah Court in the suit filed by the plaintiffs' great grand-father the claim was for a share of the estate according to the directions in the will of the propositus. It is no doubt true that the foundation of the claim would be immaterial so long as the effect of the decree in the suit is to sever the status at least so far as the property sought to be divided is concerned. The fact that no decree was ultimately passed would also be immaterial if it appears that the person desiring a partition evidences no intention during the course of the suit of abandoning his intention of cutting himself off from his co-parceners. The plaintiffs' great-grand-father however did not continue the fight to a finish but during its pendency expressed (according to the recitals and terms of the decree) in a clear minner that he did not want a partition and that he preferred to continue joint as before. Assuming the mere filing of a plaint is sufficient to sever the status of the co-parcener it seems to me that till a decree is passed in that suit it is open to the plaintiff to change his mind and to withdraw the suit so as to leave him in the same position as if no suit had been filed. I can find nothing either in Hindu Law or in the decided cases to countenance the view that a mere expression of an intention to separate is irrevocable. The decree of the Sudder Court, in my opinion left the parties, just where they were before the filing of the suit, the view of the Sudder. Court being that the whole action was misconceived, that the will upon which the claim was based was invalid and that the parties should, if they wanted anything, take separate proceedings. Paragraphs 36 and 37 of the decree, to my mind, make this perfectly clear. In paragraph 36 the Sudder Court observe, " this suit having been originally brought to obtain a share in the estate under a will which has been rejected, the Court of Sudder Adalat do not consider that they are called upon to direct that a sub-division of the estate be now made in accordance with the law of inheritance, no such question being before the Court," and to emphasise their view they state in paragraph 37 " it is therefore left for the heirs or for such of them as may be dissatisfied with the management of the joint estate by the head of the family to adopt such a course of proceeding as they may see fit to obtain the surrender to them of. their respective portion or portions of the estate." The effect of this paragraph is to leave the estate joint as before, to treat the defendant as the head of the joint family and to leave the parties, if they wanted a separation to file regular suit. This view is also supported by the fact that the Sudder Court in Exhibit F in disposing of the plea of non joinder of the brothers of the defendant held that they were unnecessary parties as the appellant who was the head of the first branch held the property as manager of the joint family consisting of himself and his brothers. It is difficult to see how the plea of non-joinder could have been got over if, as a matter of fact, the first defendant was a divided member and his brothers had specified and divided shares in the estate given to them by the decree of the Sudder Court Exhibit D), it bein clear that in a suit by a co-sharer for a partition by metes and bounds all the other co-sharers divided in status and owning shares not actually divided are necessary parties Turning to Exhibit I, it is by no means a clear and unambiguous document. I am of opinion that, having regard to the surrounding circumstances, it can only be treated as an arrangement as to the mode of enjoyment of the property and not a document which effects a partition or separation in status. It should be remembered that the 1st defendant in the Zillah Court suit had been contending for several years previously that the estate was in the nature of an impartible estate to be enjoyed according to primogeniture and that the other members were only entitled for maintenance. That this view was put forward so early as 1835 appears from the judgment of the Civil Judge (Exhibit E). It appears that in 1835 a suit for a partition of the Mitta was filed by one of the members, that objection was taken that it was impartible and that a razinama was then entered into whereby the person claiming the partition was given maintenance. Although it was argued that the effect of it was to deprive the ancestor of the plaintiff in the Zilla Court Suit of his share the Court held that it was only an arrangement as regards division. The effect of that arrangement in the opinion of the District Judge was only an expression of his willingness at that time to allow the Mitta to be managed by the defendant as head of the family. Turning again to Exhibit I, we find that, although the Civil Judge had decreed that the estate was partible, and the decree was pending in the Appellate Court the document recites that according to the hereditary practice of Zemindars, Muthu Venkatachalaswami Maniagar of the first branch was to continue to enjoy the Zemin, that the executant and the other dayadis were only entitled to maintenance and that the suit was brought because sufficient maintenance was not paid. Paragraph 2 recites that the parties considered "that if the Zemin is partitioned, the status, of a Zemindari, which would ever be a source of protection to the family, would be endangered" and the razinama was effected to prevent the danger apprehended The amount payable under this document is expressly said to be maintenance and there can be little doubt that the frame of the whole document proceeded on the footing that the estate was deemed to be impartible and that maintenance should be awarded to the various persons who, if the estate were partible, would be entitled to a share in the estate.
Madras High Court Cites 0 - Cited by 5 - Full Document

Ramasami vs Venkatesam And Ors. on 10 November, 1892

21. It seems to me that where a partition takes place under a decree of Court whereby one member claims his share and obtains it, the effect of the decree on the remaining co-parceners must be determined by the terms of the decree, or where it is ambiguous by the scope of the suit. If the suit is one for general partition (in which case it is necesssary to determine the shares of all the members and to grant reliefs to all of them and the decree declares the shares of all the members in the items of family property, there will be a severance of status, so far as the members are concerned, and if the others, in spite of the decree, continue to remain joint, it can only be under an agreement, express or implied, to re-unite. But where from the scope of plaint or pleadings all that appears is that one member of an undivided family wanted to cut himself off from the rest after receiving his share and the other members neither asked nor evinced any desire for a partition inter-se, the consideration of the shares of the others is only incidental for the purpose of giving the relief which the plaintiff wants (as it is not possible to arrive at the share of one co-parcener without knowing how many co-parceners there are and their shares) and the status of the others is unaffected by the decree in favour of one member. In such cases there seems to me to be no necessity to import the doctrine of re-union for the purpose of considering the status of these who never intended to separate. It is unnecessary to import the fiction of re-union after having had recourse to another fiction of separation because as pointed out by Bhashyam Aiyangar, J. the reunited shares of reunited brothers and after-acquired joint properties, are not on the same footing as the joint family property of a normal undivided family. See Ramasami v. Venkatesam (1893) I.L.R. 16 Mad.
Madras High Court Cites 0 - Cited by 3 - Full Document
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