Naraharasetti Pattabhirama Rao and Another vs Maddula Kasi Viswanathappa (deceased) by L.Rs.

C.V.N. Sastri, J.—The short question which arises for consideration in this Letters Patent Appeal is whether the partition deed marked as Ex.A-3 in the case evidences merely a partial partition or it has brought about a division in status. The Courts below have expressed conflicting views on this question. While the trial Court held that Ex.A-3 has resulted in the disruption of the joint family, the learned Single Judge held that under Ex.A-3 only some specified properties of the joint family were partitioned without affecting the status of the family and the remaining properties continued to be the joint family properties. For proper appreciation of the question involved, it may be necessary to recount the facts of the case briefly.

The plaintiffs in the suit are the appellants herein. The plaintiffs and the third defendant are sons of the second defendant. The first defendant is the alienee having purchased the suit property, consisting of two shop rooms in Eluru town, under a registered sale deed dated 22-3-1971 (Ex.A-1) executed by the second defendant for himself and as guardian of the plaintiffs who were then minors and by the third defendant who was a major for a total consideration of Rs. 25,000/-. The plaintiffs and defendants 2 and 3 constituted a joint Hindu family of which the second defendant was the Kartha. The family was possessed of houses and house-sites in Eluru town besides agricultural lands. By and under a registered partition deed dated 26-8-1957 (Ex.A-3) there was a division of some of the agricultural lands belonging to the family between the second defendant and his three sons who were then minors represented by their mother as guardian. According to the plaintiffs, the said partition deed resulted in division in status and thereafter the plaint schedule property and the other properties, which were not the subject matter of the partition deed dated 26-8-1957, were enjoyed by plaintiffs and defendants 2 and 3 as tenants in common but not as coparceners and as such the sale deed dated 22-3-1971 executed by the second defendant in favour of the first defendant was not valid and binding on the plaintiffs to the extent of their half share in the suit property. Hence they laid the suit for cancellation of the sale deed to the extent of their half share in the suit property, for partition and separate possession of their half share therein and also for recovery of past and future profits.

The first defendant resisted the suit contending, inter alia, that the partition deed Ex.A-3 was a nominal deed which was never intended to be acted upon, that the plaintiffs and defendants 2 and 3 continued as members of the joint family and that the sale deed Ex.A-1 was executed by the second defendant as the Kartha of the family for legal necessity i.e., for the discharge of antecedent debts and also for the benefit of the family and it was perfectly valid and binding on the plaintiffs.

The trial Court, however, decreed the suit holding that there was no joint family as such since the date of Ex.A-3 and the suit property was being enjoyed by the plaintiffs and defendants 2 and 3 as tenants in common but not as members of the Hindu joint family, that having accepted the mother as the guardian of the minor children in Ex.A-3, the second defendant was not competent to represent the minor sons or to execute any sale deed on their behalf, that the alleged debts, for the discharge of which the sale was made, were not binding on the minor sons and that the recitals made in the sale deed Ex.A-1 with regard to the discharge of some of the debts were false and fictitious.

On appeal, the learned Single Judge, disagreeing with the trial Court, held that Ex.A-3 merely evidenced a partial partition of some of the family properties, that it did not bring about division in status and that even after Ex.A-3 the family continued to remain joint and the rest of the properties were kept joint. The learned Judge further held that even though the mother acted as the guardian of the minor sons at the partition in Ex.A-3 and subsequently she alienated the minor''s properties as their guardian under Exs.A-4 to A-6., the father i.e., the second defendant did not cease to be the natural guardian of the minors and he was, therefore, competent to alienate the joint family properties on behalf of the minors. He also held that the sale deed Ex.A-1 was valid and binding on the plaintiffs as the same was executed for legal necessity and family benefit. The learned Judge, however, found that the sale deed Ex.A-1 was not partly supported by consideration to the extent of the alleged debts covered by Exs.B-3 and B-5 which were held to be not genuine in the previous litigation. Accordingly the learned Judge granted a decree for payment of the balance of sale consideration by the first defendant to the plaintiffs with interest at 12% per annum from March 22, 1971 till date of payment. In other respects the suit was dismissed.

Sri T. Veerabhadraiah, learned Counsel for plaintiff-appellants, assailed the judgment of the learned Single Judge by contending that the recitals in Ex.A-3 clearly and unambiguously manifest an intention to bring about division in status, that the whole purpose and object of the execution of Ex.A-3 was to safeguard the interests of the minors and to prevent the father from dealing with the properties of the minors. Otherwise there was no need to execute Ex.A-3. He also contended that the fact that Ex.A-3 covered only some of the properties keeping the rest of the properties joint is immaterial as even after division in status the properties can be kept joint for being enjoyed by the sharers as tenants in common. Sri Veerabhadraiah placed strong reliance on the judgment of the Supreme Court in Kalyani (Dead) by Lrs. Vs. Narayanan and Others, , which, according to him, is a direct authority but not noticed by the learned Single Judge. He has also placed reliance on the judgment of a Division Bench of the Bombay High Court in Dagadu Govinda Bodake Vs. Sakubai Nana Bodake, .

On the other hand, Sri P. Ramachandra Reddy, learned senior Counsel appearing for the first defendant, has contended that Ex.A-3 evidences only a partial partition effected by the father confining it to certain agricultural lands only without reference to the house properties owned by the family, that does not automatically result in disruption of the family or severance in status and it is open to the parties to retain their status as a joint family even after dividing some of the joint family properties. He also contended that the decision of the Supreme Court relied on by the learned Counsel for the appellants is distinguishable and is not applicable to the facts of the instant case. In support of his contentions, Sri Ramachandra Reddy has placed Council in K. Ramalingam v. Narayan Annavi AIR 1922 PC 201 , AIR 1925 49 (Privy Council) and the judgment of a Division Bench of the Madras High Court in Appavu alias Lakshmanan Pillai and Another Vs. Manickam Pillai and Others, .

It is well known that in Hindu Law the term ''partition'' does not mean simply a division of property; it covers both division of title and division of property. Partition in the sense of a division of title is the process by which members of a joint family become divided in status. Partition in the sense of a division of property is (according to Mitakshara school) division of joint family property into specific shares or by metes and bounds. Partition in either sense may be total or partial. (See Appovier v. Rama Subba Aiyan (1866) 11 Mia 75 (PC) and Girjabai v. Sadashiv AIR 1916 P.C 104. The distinction between the two types of partition, namely, division of status and division of property is real and the legal consequences resulting therefrom are also quite distinct. A joint family may or may not have property. A partition in the sense of a division of right, title or status may take place whether there is any property or not. In a case where there is no property, division of status involves no immediate consequences of any importance though it may well do so in future; a partition in such circumstances is purely notional. But where, on the other hand, a family has joint property, a partition affects it in important ways. Partition in the sense of a division of status destroys the status of jointness as between separating members but does not affect or annul the filial relation between them and it also alters the character of the joint property (if any) from joint tenancy to a tenancy in common as between the separating members. Partition in the sense of a division of property alters the character of the joint property (partitioned) from a joint tenancy to a tenancy in common as between the dividing members, but does not necessarily affect the status of jointness of the dividing members as members of a joint and undivided family except as to the property partitioned, that is to say, it does not affect the status of dividing members in regard to other property or other purposes. The legal consequences of a partition cannot be controlled by conduct. (See Chapter 8, Art.39 of Hindu Law by S.V. Gupte 3rd (1981) Edition). Once the severance or partition, as it is technically called, takes place nothing can restore between those who have divided the status they had previously enjoyed as members of a particular family with all that status involves. After severance they may elect once more to live together, be joint in food, worship and estate but nothing will avail; the old status is gone for ever and the persons so living together are no longer a joint and undivided family in the technical sense. (See Balkishan Das v. Ram Narain (1903) 30 I.A.139 and Kalyani (Dead) by Lrs. Vs. Narayanan and Others, . The partition or division of property destroys the character of property as joint family or coparcenary property and converts it (the whole or the propety partitioned) from the joint tenancy known to Hindu law as coparcenary into a tenancy in common. The interest of the dividing members in what was till then joint family property becomes thenceforward their separate property. (See Approvier v. Rama Subba Aiyan (1866) 11 Mia 75 (89) (PC)). Once the character of the property is changed they might elect to have a partition of their shares by metes and bounds or continue to live together and enjoy their property in common as before. Whether they did one or the other would affect the mode of enjoyment, but not the tenure of the property or their interest in it. (See Balkishen Das v. Ram Narain (1908) 30 LA. 139 (PC). Where there is a division of status, the whole of the joint family property becomes at once the subject-matter of division; the joint tenancy known to Hindu Law is changed into a tenancy in common automatically. But it is always open to the members of the family to come to a partition of the whole or part of the property without altering their status generally or for all purposes as a joint family. This is entirely a matter of their volition and intention but not of law. (See K. Ramalingam v. Narayan Annavi (supra).

In Dagadu v. Sakubai (supra), a Division Bench of the Bombay High Court held that once there is a partition, there is a presumption that as regards that portion of the estate which remained undivided the members of the family would hold the same as tenants-in-common unless a special agreement to hold as joint tenants is proved. In Kumarappa Chetti and Others Vs. Muthuvijaya Raghunatha Muthukumara Vanangamudi Valuvatti Thevar (dead) represented by Thangammal Aeeyar, , a Division Bench of the Madras High Court held that when it is admitted or proved that a partition has already taken place, the presumption is that it has been a complete partition and there is no presumption that any property was excluded by a partition, on the contrary the burden lies upon him who alleges exclusion to establish his assertion. In Appavu v. Manickam Pillai (supra), a Division Bench of the Madras High Court, however, held that:

"The partition of some of the joint assets does not of itself imply a division in status. In deciding whether a joint family has become divided the Court must naturally have regard to the terms of any instrument bearing on the question and if the wording is ambiguous to the subsequent conduct of the parties."

In Manickam Chetti Vs. Kamalam, also, the same view was expressed by stating that the question is essentially one of intention of the parties and the construction of the partition deed executed between them.

In Kalyani v. Narayanan (supra), the Supreme Court held as follows:

"Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenery is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenery with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of share of such member. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by- division of properties by metes and bounds covers both a division of right and division of property (See Approvier v. Rama Subba Aiyan (1886) 11 Ind App 76) quoted with approval in Smt. Krishnabai Ganpatrao v. Appasaheb Tuljaramarao (1979) 4 SCC 68). A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may, at any time, be claimed by virtue of the separate right. (See Girja Bai v. Sadashiv (AIR 1916 PC 104). A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense."

In the same judgment the Supreme Court further held that once disruption of joint family status takes place, it covers both a division of right and division of property. If a document clearly shows the division of rights and status its legal construction and effect cannot be altered by subsequent conduct of parties.

Let us now proceed to examine the recitals of Ex.A-3, on which the case mainly turns, in the light of the principles discussed above. It is not in dispute that Ex.A-3 is a regular deed of partition executed by and between the second defendant and his three sons who were then minors represented by their mother as guardian. The document was in respect of the immovable properties worth in all Rs. 18,959-06 Annas which were divided into four shares and it was recited in the document that the individuals shown as 2 to 4 were the sons of Individual No. 1 and all of them had equal shares in the entire properties mentioned in the schedule. Then comes the most important recital which is to the effect that Individual No. 1, in exercise of his power as father of Individuals 2 to 4, decided that it is good and beneficial to every one of them to divide the family properties into four shares and to take one share each separately and the mother of the Individuals 2 to 4 also requested for partition of the properties with the same intention that it is good and beneficial and accordingly the properties have been divided into four shares. As the Individual No. 1 has taken upon himself the responsibility of maintenance, education and performance of the marriages of the sons and the daughters, more lands have been included in the share of Individual No. 1. It was further recited in the document that the properties have been divided into four shares by Individual No. 1 in exercise of his power as father through mediators in accordance with the superior and inferior quality of the properties. It was also recited that possession of the properties that fell to the respective sharers was taken by them on that date itself and it was agreed that from then onwards each sharer shall enjoy the properties that fell to his share as absolute owner with absolute powers to sell, gift, transfer and exchange without any dispute whatsoever from son to grand-son and from generation to" generation and to pay the cist individually on the lands falling to his share. It was also recited that applications for mutation of the property that fell to the share of each of the sharers in their respective names in Government accounts have been also executed. It was further stated that it was not open to anyone to raise any dispute in future regarding the shares or to claim any rights in the properties which fell to the shares of the others. Finally it was recited in Ex.A-3 that in addition to the properties, which were partitioned, the family got other lands measuring a total extent of Acs.5-42 cents regarding which a suit being O.S.No.37 of 1951 was filed in the District Court and as the same was decided against them, an appeal in A.S.No.897 of 1952 was filed in the High Court which was still pending. Till the said appeal was decided the said property was not available for partition and hence the same was kept joint.

In our considered opinion the recitals in Ex.A-3, read as a whole, manifest an intention on the part of the family members to become divided in status. More particularly the recital that the father, in exercise of his power, decided that it is good and beneficial to every one of them to divide the family properties into four shares and to take one share each separately and the further recital that the mother of Individuals 2 to 4 also requested for partition of the properties with the same intention that it is good and beneficial and accordingly the properties have been divided into four shares give a clue to the intention of the parties. This inference is further strengthened by the fact that the mother represented the minors as their guardian instead of the father while executing the sale deeds under Exs.A-4., A-5 and A-6. We are inclined to agree with the submission of the learned Counsel for the plaintiffs- appellants that the whole object of executing Ex.A-3 was to safeguard the interests of the minors by preventing the father from dealing with their properties. There is no other plausible explanation for the execution of Ex.A-3. It is true that all the properties possessed by the joint family were not included in Ex.A-3. But it is of no consequence in the face of the definite and unequivocal intention to separate expressed in the document. When once such a declaration of intention is made, it automatically results in severance of joint status and its legal effect cannot be altered by subsequent conduct of parties. The mere fact that the father and sons lived together subsequently or that they enjoyed the property in common as before cannot alter the character of the property which ceased to be the coparcenary property. We are, therefore, of the view that the learned Single Judge committed an error in holding that it was a case of partial partition only and that the family continued as a joint family. As already noticed above, it is a well established principle of Hindu law that when it is admitted or proved that a partition has taken place, the presumption is that it is a complete partition though it is a rebuttable presumption. There is indeed no plausible explanation in this case in support of the theory of partial partition. There is no good reason to think that the father and mother, having decided that severance in status is beneficial to all the family members and having effected a partition under a regular deed of partition, intended to continue the joint status with regard to some properties. We, therefore, have no hesitation in rejecting the theory of partial partition. It follows from the above discussion that after severance in status, it was not open to the father to execute the sale deed Ex.A-1 as the Karta of the family so as to bind the minor sons. Even assuming that the second defendant did not cease to be the natural guardian of the minors, after the partition it was not open to him to sell the minors'' properties without obtaining the previous permission of the Court as per Section 8 of the Hindu Minority and Guardianship Act, 1956. It must, therefore, be held that the sale deed Ex.A-1 is not valid and binding on the plaintiffs to the extent of their half share in the suit property. Further the learned Single Judge himself found that Ex.A-1 is not fully supported by consideration in that the debts covered by Exs.B-3 and B-5 were held to be not genuine and the recitals made in that behalf in Ex.A-1 are therefore false and fictitious. The amount covered by Exs.B-3 and B-5 represents roughly half of the sale consideration payable under the sale deed. If that be so, we fail to see why the sale should be upheld by ordering payment of the balance of sale consideration by the first defendant to the plaintiffs as was done by the learned Single Judge. In the face of the said finding with regard to the consideration which, as a matter of fact, was also conceded by the learned Counsel for the first defendant, we find no justification whatsoever for upholding the sale deed Ex.A-1 to the extent of the plaintiffs'' half share in the suit property.

For all the aforesaid reasons, the appeal is allowed. The judgment and decree of the learned Single Judge are set aside and the decision of the trial Court is affirmed. The parties are, however, directed to bear their own costs throughout.