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443 paragraphs · 11,054 wordsWallis, C.J.—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 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. 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 and that they interpreted that
decision correctly appears from the subsequent decision of their Lordships in Girjabai 1 Sadashiv Dhundiraj (1916) L.R. 43 IndAp 151 which
must be taken as finally settling the question, (1917) L.R. 44 I.A. 159 (Privy Council) . In Girjabai v. Sadashiv Dhundiraj (1916) L.R.43 IndAp
151 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 (1903) ILR 30 231 (Privy Council) , and Balabux
Ladhuram v. Rukhmabai (1903) L.R. 30 I A. 130. 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
Ranganadha Rao v. Narayanasami Naicker (1908) 31 Mad. 482 and V. Rangasami Naidu and Another Vs. Sundarajulu Naidu and Another,
These being the general principles, it only remains to apply them to the present case. The common ancestor purchased a mitta in the early part of
the last century, and in 1835 one of the younger sons sued the eldest son for partition and another of the younger sons Shanmuga Kumara
Maniagar was one of the defendants in that suit. When his son sued for partition in 1849, it was objected that his father had admitted in the suit of
1835 that the Zemin was impartible, but the Civil Court held that the plaintiff''s father had not given up his claim for partition in that suit, but only
expressed his willingness at the time to the estate being managed by the eldest brother as head of the family, Exhibit E. That is all we know of the
suit of 1835, and it does not seem sufficient to warrant us in holding that the filing of the plaint in that case operated as a division in status of all the
co-parceners.
Then we come to the suit 1843 which was a suit for partition and allotment of the share taken by the plaintiff under a will of the first Zemindar.
The Civil Judge found that the will was not operative, as the property was joint family property and that the division in the will was beyond the
powers of the testator, and passed a decree for the partition of the suit property dividing one half among the sons of the senior wife and allotting
the other half to the son of the junior wife according to what he erroneously believed to be the rule of Hindu Law. Here again I do not think the
filing of a suit for partition by the ancestor of the plaintiff''s branch can be said of itself to have effected a severance, as when the case was under
appeal to the Sudder Adalat the plaintiffs'' ancestor entered into a razinamah, the effect of which will be considered later, and asked the Court not
to proceed with the partition, and the Court acted on his application and inserted in the judgment what appears to be a declaration that the family
was to continue joint.
While the appeal was pending, the appellant who was the eldest son of the deceased and senior co-parcener introduced the widow of the third
son on behalf of herself and her minor children to enter into a razinamah Exhibit B dated 1st June 1846 by which she is alleged to have released
their claim to a share in consideration of his undertaking to grant them a fixed maintenance, and on the 29th November 1847, he obtained a similar
release Exhibit I from the second son who was the 1st plaintiff in the suit and through whom the present plaintiffs claim...Subsequently to the decree
of the Sudder Adalat on l2th December 1848 he obtained a release Exhibit B from his step-brother, the son of the junior wife of the deceased who
had not been made a party to the suit of 1843. In 1849 one of the co-parceners who had been 2nd plaintiff in the suit of 1843 brought a suit for
partition against the eldest son and senior co-parcener and obtained his share, the Court holding that he was not debarred from enforcing his claim
by the action of his father during the suit of 1835 with which 1 have already dealt. The result of all these proceedings was that the eldest son of the
purchaser and his descendants in the male line enjoyed all the properties left after the partition in 1849 on the strength of the releases Exhibits III, I,
and B, until the death of the last male descendant in 1896 raised the question as to who was his right heir, a question which depends on the
question whether or not he was divided at the time of his death.
As regards the plaintiffs'' claim, the main question appears to me to be whether their ancestor parted with all the interest of his branch in what till
then was joint family property in favour of the senior co-parcener by Exhibit I. If he did, I do not think that he acquired any rights under the decree,
of the Sudder Adalat in 1849 which does not appear to me to have been intended to affect the operation of the razinamah Exhibit I to which it
refers. If he did not and continued a co-parcener, I do not think the filing of the suit of 1849 for partition against the senior co-parcener by another
co-parcener to which he was not a party, and the fact that that co-parcener obtained a decree for his share effected a division in status between
the senior co-parcener and the plaintiffs'' branch. As I have already said a severance by one co-parcener does not effect a severance of the other
co-parceners inter se when they all go on in the same way. The real question then seems to me to be the same as in the Belgam case in (1897) ILR
20 256 (Privy Council) whether by Exhibit I there was an effectual partition. In that case the junior son of the first Zemindar on behalf of himself
and his heirs executed in favour of the elder brother and his heirs two pharikut sunnads, or partition deeds, by one of which he undertook on behalf
of himself and his heirs not to make any further claim on the estate in consideration of the village allotted to him. Their Lordships affirming the
judgments of the District Court and this Court, to which we have referred, held that this deed did not preclude the descendants of the younger
brother from taking in preference to the 1st defendant who was the widow of the last male descendant of the elder brother. They did not find any
sufficient evidence in the arrangement made by these documents of an intention to take the estate out of the category of joint or common family
property so as to make it descendible otherwise than according to the rules of law applicable to such property. The parties in that case appear to
have, dealt with the estate on the footing that it was impartible although it was not so, and their Lordships observed that the junior brother accepted
the appropriated village for maintenance in satisfaction of such rights as he conceived he was entitled to.
The facts of the present case differ in many respects. The first Zemindar had seven sons, two of whom died without issue and may be
disregarded. When Exhibit III and Exhibit I were executed a preliminary decree for partition, Exhibit C, had been passed in the suit on the alleged
will, and was under appeal by the 1st defendant the eldest brother. If that decree had stood, there can, I think, be little doubt that it would have
effected or recognised a division in status. What was stipulated by Exhibit III between the Zemindar and the representatives of the third brother
was that the Zemindar and his heirs were to pay an annuity of Rs. 400 for ever, as well as surrender to them certain lands, etc., that the terms might
be enforced in execution, and that the eldest brother and his heirs should be entitled to the gains and liable for the losses of their branch. Exhibit I,
which was executed subsequently between the eldest brother and the second brother, purports to be on the same lines as Exhibit III and is in
similar terms, but contains a recital that the settlement was come to in consideration of the fact that "" if the aforesaid Zemindary is partitioned, the
status of a Zemindary which would ever be a source of protection to the family will be endangered "" and with a view to prevent it, it concludes with
the stipulation that the second brother should hot proceed with the partition suit and that the Zemindar should be entitled and liable to all the gains
and losses of his share. Accordingly the second brother who was the 1st respondent filed his razinamah and said he did not want a partition and
the appellate decree did not award one. In this state of things I think the present question depends upon what is the right construction of Exhibit I.
Now Exhibit I was only an agreement between the Zemindar, the senior co-parcener, and one of the junior co-parceners. It did not bind the other
coparceners and did not prevent another co-parcener from filing the suit of 1849 for partition against the Zemindar. On a careful consideration of
the question, the conclusion to which I have come is that the effect of Exhibit I was that the senior co-parcener and his heirs were to be left in
possession of the estate as Zemindars subject to the terms of the instrument, but I do not think it evidences an intention on the part of the junior co-
parcener who executed it to cut himself and his branch off from the joint family, so that in the event of failure of the direct heirs of the senior co-
parcener, his share should pass by survivorship to the other co-parceners who were not then separated to the exclusion of the executant of Exhibit
I and his heirs. On the whole I think there is even less reason than in 1 CWN 417 (Privy Council) for presuming an intention to take the estate out
of the category of joint or common family property.
Assuming that Exhibit I did not effect a severance of the second brother''s branch from the joint family, the question is whether it is any bar to a
suit for partition by the plaintiffs who are members of that branch, or whether the 2nd and 3rd defendants who are also members of that branch are
entitled to resist partition as the nearest dayadis of the last male of the senior branch and so heirs to his separate or self-acquired property. The
District Judge has held that Exhibit I if regarded as an agreement not to partition is illegal and void.
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 ILR (1880)
Cal. 106 Ramalinga Khanapure v. Virupakshi Khanapure ILR (1883) 7 Bom. 538 Radhanath Mukerjee v. Tarucknath Mukerjee 8. C. W.N.
This is the main question in the case. In this and other respects, I agree in the conclusion arrived in the judgment prepared by my learned
brother and in the order proposed by him.
Kumaraswami Sastri, J.
This appeal arises out of a suit for partition of an estate known as the Vadimitta estate. It originally belonged to one Perayur Muthukumarasami
Maniagar who died several years ago leavin six sons by his first wife and one by his second. The case for the plaintiffs is that the descendants of
the various branches continued to be members of an undivided family, that the Mitta is partible property and that they as the descendants of the
second son of the propositus are entitled to l/12th share in the estate. There is no dispute about the relationship of the various parties to the suit as
set out in the pedigree annexed to the plaint. The property admittedly continued to be in the possession and enjoyment of the descendants of the
first son of the propositus. The male descendants of that branch became extinct with Ponnusami Maniagar who died a minor on the 16th October
1896 leaving no issue but only a sister Palani Ammal who is the 21st defendant in this suit. When Ponnusami Maniagar died, the Mitta was under
the management of the Court of Wards and the Collector, after the death of Ponnusami Maniagar, instituted an interpleaded suit as there were
various rival claimants to the estate. To that suit the present plaintiffs were not parties but their father was the 8th defendant. The suit was
compromised and he got a share in the estate. The plaintiffs impugn the compromise as being in fraud of their rights and as having been entered into
by their father under coercion and undue influence. They also allege that their father was a drunkard and a man of dissolute habits and was not
protecting them and that the compromise was manifestly to their disadvantage as a large portion of the estate was excluded from the partition. The
case for the appellant is that the descendants of the various branches became divided several years ago, that the estate was in the enjoyment of
Ponnusami Maniagar the last male holder as divided property, that the plaintiffs, who are the sons of the lst defendant in the suit being more
remotely related to the deceased male holder than their father, have no interest in the property and that, assuming they have any interest, the
compromise entered into in the interpleader suit is valid and binding on them as it was entered into by their father bona fide and for their profit. The
District Judge held that the plaintiffs were members of an undivided family with the deceased Ponnusami, that they were entitled to a share in the
estate and that the compromise entered into by their father was not binding on them. Two questions arise for determination in this appeal. The first
is whether the mitta was held as divided property by Ponnusami Maniagar in which case the plaintiffs would admittedly have no claim, their father
being a nearer Dayadi than themselves and secondly, whether the compromise entered into by their father is valid and binding upon them. So far as
the division or non-division is concerned, there has been no formal partition deed between the various members of the family, and it is not alleged
that the estate was at any time divided by metes and bounds. Reliance has been placed by the learned Advocate-General upon legal proceedings
and documents (Exhibits B,D.E,F,l, II and III) as evidencing a divided status and it is necessary to consider the various decrees and documents
referred to in order to determine whether they in fact effected a division in status between the several sons of the propositus.
Perayur Muthukumarsami Maniagir the propositus died leaving a will wherein he purported to give the Mitta to his sons by his two wives in
unequal shares. A suit was filed in the Zillah Court of Tinnevelly by Thambusami Maniagar, the ancestor of the present plaintiffs, Kumara
Muthayasami Maniagar, the 4th son of Muthukumarasami Maniagar, the widow of Gopalasami Maniagar, the third son as guardian of her minor
children and Mannarsami Maniagar, the grandson of Muthukumarasami by his son Shanmuga Kumaran Maniagar against Muthu Venkatachalasami
Maniagar the eldest son of Muthukumarasami Maniagar. The pleadings are not filed but it appears from Exhibit A (the decree of the Zillah Court of
Tinnevelly) that the plaintiffs claimed a division of the estate on the ground that Muthukumarasami Maniagar left a will dividing the estate between
his sons. The suit was resisted by Muthu-venkatachalasami Maniagar, the eldest son on the ground inter alia that the Mitta was not divisible and
that the will executed by their father was invalid under Hindu Law. The Zillah Judge found that the estate was purchased by the father of the 1st
plaintiff and defendant and that it was partible property but was of opinion that the division made by the father was invalid. He proceeded to deal
with the case under the Hindu Law as he understood it declaring the rights of the- parties to the estate according to what is called Pathnibhagam
(shares according to wives) the six sons by the first wife being declared entitled to one-half and the only son by the second wife to the other half.
The decree also dealt with the personal property left on similar lines. It will thus be seen that, although the plaintiffs wanted their share from the
defendant, all that was done by the Zillah Judge was to declare that the plaintiffs and defendants were entitled to half the Mitta jointly and that the
son by the second wife who, was not a party to the suit was entitled to the other half. An appeal was filed against this decree to the Sudder Adalat
Court and Exhibit D is the decree of that Court, The Suddar Adalat Court held that the will alleged to have been executed by the father of the
parties was invalid under Hindu Law, that the estate was partible but that the principle of the division effected by the Zillah Judge was wrong, the
estate being divisible not according to Pathni- bhagam but between the, several sons equally, irrespective of whether they were the sous by the,
first or second wife. In paragraph 35 of the judgment, the Sudder Court resolved to amend that portion of the decree of the lower court which
related to the division of the estate according to Pathnibhagam and "" to adjudge that the heirs to the estate in dispute are entitled to share in the
same in the manner laid down by the Hindu law of inheritance."" In paragraph 36 they state that ""the 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 "" In paragraph 37 they state
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, seem fit to obtain the surrender to them of their respective portion or portions of the estate."" After
the decree of the Zillah Court and during the pendency of the appeal to the Sudder Court the first plaintiff in that suit who was the second son of
Muthukumarasami Maniagar and the great-grand-father of the present plaintiffs executed a deed (Exhibit I) in favour of the defendant in that suit
who was his eldest brother. This document was filed in the Sudder Court and paragraphs 21 and 22 of the judgment (Exhibit D) refer to it. In
paragraph 21 it is said that a razinama had been filed by the 1st respondent stating that he no longer wishes to press the appellant for a partition of
the estate, and in paragraph 22 it. is stated that the only respondent left to continue the action is Mannarasami, the son of Shinmuga Kumaran
Maniagar who was the fifth son of the propositus. Exhibit I which is dated the 29th of November 1847 purports to be a razinama presented by the
great-grand-father of the present plaintiffs who was the 1st respondent, and his eldest brother who was the appellant in the appeal to the Suider
Court. It recites that the eldest son Muthuvenkatachalasami Maniagar continued to enjoy the Zemin according to the hereditary practice of
Zemindars, that the other respondents to the appeal were entitled to maintenance that the plaintiffs in the suit, considering that the rate of
maintenance given to them was insufficient, filed a suit for partition which resulted in a partition being directed by the Civil Court and that the parties
to Exhibit I effected a compromese of their disputes. Paragraph 2 of the razinama states that in consideration of the fact that a partition of the
Zemindari, which would, if left intact, ever be a source of protection to the family, will endanger the status of the Zemindari and with a view to
prevent a division of the Zemindari and to keep it as an impartible estate, the 1st respondent to the appeal was to get Rs. 400 per annum payable
to him out of the Zemindari income by the appellant and also certain lands to be cultivated by him and also certain other small benefits which are
not material. The document winds up as follows: ""As the 1st respondent and the appellant amongst us have executed between them
Oodambadihkai kararnamah on stamp papers to the above effect so that the 1st respondent Thambya swami Maniagar may not take, any further
steps in the partition suit and that the appellant and his heirs should be entitled to the gains and liable for the losses of the 1st respondent''s pangu
(share) it is requested that the Court may be pleased to order the razi-nama to be filed in the above suit and stop the trial on behalf of the 1st
respondent,"" On the 1st June 1846 a razinama (Exhibit III) was entered into between Muthuvenkatachalasami Maniagar and Avudaithangarnmal
(widow of Gopalasami Maniagar the third: son of Muthukumarasami Maniagar) acting for herself and on be-half of her minor children. It recites
that a suit was filed because the defendant did not pay them adequate sum for their maintenance, that the defendant after the passing of the decree
in that suit was attempting to appeal to the Sudder Court and that the parties in the presence of the Court have agreed that the defendant (who is
called the Zemindar) should pay for the maintenance of the third branch of the family, which consisted of the two sons of Gopalasami Maniagar
and the widow, Rs. 400 every year from the income of the Zemindari, that certain lands were to be given to them and that the sum of Rs. 400
should continue to be paid by the said Zemindar and his heirs to the third branch and their descendant...From the endorsement of the Civil Judge it
appears that Exhibit III was filed in Court on the 8th June 1846 which is about three months after the decree (Exhibit A) passed by the Civil Judge
in the suit. On the 12th December 1848, Exhibit B, which purports to be a razinama agreement, was executed by Muthuvenkatachalasami
Maniagar the eldest son of the propositus by his first wife to Sundarabala Kumarasami Maniagar the son of the propositus by his second wife. It
recites that there were misunderstandings between them and that they entered into that agreement in settlement of all the disputes. It states that the
executant and his successors in title should be entitled to the Pattam (succession) and to all rights in the Zemin-dari (Mitta) that Rs. 1,000 every
year should be paid to Sundarabala Kumarasami Maniagar and his successors for maintenance and that some lands should be given to him for
cultivation. The amount of maintenance is charged on certain villages specified in the agreement. The document winds up as follows: ""that excepting
this, you have no right either heretofore or hereafter to any property moveable or immovable; that you yourself shall discharge the debts contracted
by you; that you shall have nothing to do with the decision of the Tinnevelly District Court in the suit brought by your younger brothers against us;
that you too are entitled to a share; that you shall have nothing to do with whatever decision that may perhaps be passed about your share by the
Sudder Court in Appeal No. 20 of 1846 preferred by us against our younger brothers; and that hereafter there shall be no Dayadi suit about
anything between you and us."" It appears from this agreement that a counter-part was executed by Sundarabala Kumarasami Maniagar in favour
of his brother. In 1849 a suit was filed on behalf of Mannarasami Maniagar, the eldest son of Shanmuga Kumaran Maniagar for a fifth share in the
Vadimitta Estate. It will be remembered that in the decree of the Sudder Court he was said to be the only respondent who was left to continue the
action. It was alleged that by the decree of the Sudder Court the heirs were referred to a regular suit if they were dissatisfied with the management
of the property by the head of the family and wanted a partition of the estate and that the plaintiff was therefore entitled to a division as he was
dissatisfied, The plaintiff stated therein that other four persons entitled to an equal share in the property were the eldest son of the deceased
propositus, his second son Thambiasami Maniagar (great grandfather of the present plaintiffs), Sundarabala Kumarasami Maniagar, son of the
propositus by his second wife and Muthukurnarasami Maniager, the grand-son of the propositus. The only defendant to the suit was Muthu
Venkatachalasami Maniagar the eldest son of the deceased propositus. He defended the suit on the ground that the Mitta was not divisible, that
razinamas had been entered into by certain other heirs of the deceased relinquishing their claim for a partition and consenting to receive
maintenance, that the plaintiffs'' father admitted in Suit No. 8 of 1835, that the Mitta ought to be enjoyed according to primogeniture, that the
parties renounced their claim for a. division of the estate and that the plaintiffs had two step-brothers who ought to be made parties to the suit. The
Zillah Court held that the decree of the Sudder Adalat Court was conclusive as regards the estate being partible, that the plaintiffs'' father did not
give up his claim for partition in Suit No. 8 of 1835 but only expressed his willingness at the time to the estate being managed by the defendant as
the head of the family and that it was not necessary to consider the claims of the plaintiffs'' stepbrothers as they would, if at all, be entitled to a
partition of the share allotted to the plaintiffs. The Judge awarded one-fifth share of the mitta to 1st plaintiff subject to the claims which his
stepbrothers might establish. An appeal was filed by the defendant to the Sudder Court and the decree of that Court is marked as Exhibit F
On appeal objection was taken by the appellant that two of his brothers who were alive ought to have been made parties to the suit and that
the suit was therefore bad for non-joinder. With regard to that plea, the Sudder Court in dismissing the appeal observed as follows: ""Neither is the
presence of the appellant''s brother in the suit requisite, seeing that appellant as head of the family holds the property in issue and the shares of his
brothers in the computation of that claimed by the appellant have been allowed for."" After the death of the decree-holder one of his widows sold
the interest of her husband, under the decree for partition which he had obtained, to Muthukumarasami Maniagar of the first branch of the family
by Exhibit C, dated 31st October 1870. The document recites that Muthukumarasami Maniagar was Zemindar of four shares, that her
(executant''s) husband died on the 25th September of that year indebted to the extent of Rs. 8,000 and that the widows were not able to discharge
the debt.
It will thus be seen that by various agreements or transfers the first branch of the family continued to be in possession and enjoyment of the
Zemin without any actual partition being effected. In 1873 Muthukumarasami Maniagar mortgaged the Zemindari to one Alagappa Chetti for Rs.
600 under the document Exhibit II, dated the 17th September. The purpose of the mortgage does not appear and this document is not of much use
as there is no recital as to the property being divided or undivided.
These are all the documents relied upon to show that the first branch of the family was divided in status although there was no actual partition at
anytime So far as the 7th branch of the family is concerned, namely, the branch descended from the second wife of the propositus, the District
Judge has held that Exhibit B was a complete severance of interest between that branch and the others and having regard to the express terms of
the Exhibit B which I have already set out the District Judge is correct. Nothing can be clearer than the recitals in exhibit B that the parties to it
should have no kind of common interest subsequent to its date and that the son by the second wife had transferred his share absolutely in
consideration of a fixed payment and certain lands allotted to him.
As regards the second branch, the only documents that could affect the rights of the parties are Exhibits I, D, E and F and the question is
whether these documents show unequivocally that the parties intended to be separated in status.
It is argued by the learned Advocate-General that the effect of the suit filed in the Zillah Court by the great grand-father of the plaintiffs was to
create a severance in status whatever must have been the ultimate decision in that suit, and that, even if there was any doubt as to the effect of the
decree, Exhibit I is an out and out assignment of the share of the great grandfather which left to that branch no other rights but to claim the
maintenance allowed to the plaintiff and his successors.
It is contended for the respondents that the suit in the Zillah Court was not one for partition of an undivided estate but only a suit to get the
shares given under the will of their father, that there was no question of co-parcenary rights in the litigation, that the effect of the decree of the
Sudder Court was to dismiss the suit as filed and that the declaration in paragraph 37 of the decree of the Sudder Court (Exhibit D) which leaves
the family undivided and puts the first branch of the family in the position of managing members of the family, wag expressly made to prevent any
doubts that might otherwise arise.
As regards Exhibit 1, it is contended that it was only an arrangement for a better enjoyment,of the property the parties being under the
impression that they could by agreement render the estate impartible and that it would be advantageous to them to leave the property undivided
and to get only, maintenance. It is also argued that it was superseded by the decree passed subsequently by the Sudder Court (Exhibit D) or that in
any event they must be read together.
I am of opinion that there has been no division in status between the various members of the family. 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 ILR (1916) Cal. 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. I need only refer to the judgment of Mr. Justice Bhashyam Aiyangar in
Sudarsanatn Maistri v. Narisimhalu Maistri (1901) 23 Mad. 149, and Subraya Mudali v. Manika Mudali ILR (1896) 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. 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 ILR (1897) 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
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 ILR (1901) 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 IndAp 180. "" So far as this Presidency is concerned, though there is no
reported decision bearing directly on the point, (Peddayya v. Ramalingam ILR (1887) M. 106 dictum at page 408) the principle generally
recognised and acted upon is that though there can be no compulsory partial partition either in respect of the joint property belonging to the family,
or in respect of the persons constituting the undivided family, yet by mutual agreement of parties the partition can be partial either in respect of the
property or of the persons constituting the family. And according to usage and custom 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 and not as members, who after partition have become
re-united "".
The question is how far the law as laid down in the above passage has-been modified by the decisions of the Privy. Council in Ram Pershad
Singh v. Lakhpati Koer (1902) 30 C. 281 and Balabux Ladhuram v.Rukhmabai (1908) L.R. 30 IndAp 180. The question raised in the former
case was whether the separation of one member ipso facto effects a separation between all the others and all that was decided in this case was that
there is no presumption, where one member takes his share and separates himself, that the other members remain joint and that the question as
regards the other members is one of fact to be decided from their conduct. In Balabux v. Bukhmabai (1908) L.R. 30 IndAp 180 their Lordships
of the Privy Council were of opinion that in cases where the shares of all co-parceners are fixed and determined with a view of ascertaining the
share of the out-going co-parcener the separation of one co-parcener is a virtual separation of all, and that if the other members set up that they
are joint they must prove re-union. The effect of the decision of the Privy Council in Balabux v. Rukhmabai (1908) L.R. 30 IndAp 180 was
considered in Ranganatha Rao v. Naraynasawmi Naiker ILR (1908) M. 499, where it, was held that there is no presumption of a general division
among all the members of co-parcenery from the fact that one of its membes has separated and in V. Rangasami Naidu and Another Vs.
Sundarajulu Naidu and Another, where it was held that there was no presumption that the separation of one member by itself effected a separation
of the rest, The observations of Srinivasa Aiyangar, J., at page 475, set out the position of the co-parceners in such cases. In Durga Dai v.
Balmakund ILR (1906) A. 93 it was held that where an award in effecting a partition allotted a share to an uncle and the remaining shares to his
two nephews the presumption was that they took it as joint property as there was no indication in the award that they should take the half in
separate shares.
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 ILR (1893) Mad. 440 and the observations of Srinivasa
Aiyangar, J. in V. Rangasami Naidu and Another Vs. Sundarajulu Naidu and Another, . 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.
Turning to the facts of the present case it appears to me that Exhibits E and F do not effect a general partition or declare the rights of the other
co-parceners inter se. The suit was by one of the co-parceners for his fifth share and what is significant is that in the suit for partition the only
defendant was the only member of the eldest branch, and one who was described in the decree of the Sudder Court (Exhibit D)as the head of the
family and the manager of the joint estate. The proceedings went on on the footing that he represented his co-parceners. The decree of the original
court did not declare the shares of the others inter se but simply gave the plaintiff his one-fifth share. The Sudder Court affirmed the decree of the
Civil Judge and in doing so treated the defendant as representing the other co-parceners. Under these circumstances I do not think the present
case falls within the decisions in Ram Pershad Singh v. Lakhpati Koer I.L.R (1902) Cal. 231 and Balabux v. Rukmabai ILR (1908) C. 725. I am
therefore of opinion that the great-grandfather of the plaintiffs did not become divided in status from his elder brother and the decision of the
District Judge on this point is correct.
I shall now deal with the next point as to the binding nature of the compromise entered into by the plaintiff''s father.
The District Judge has considered the evidence and the probabilities in paragraphs 24 to 58 of his judgment. He has gone into the matter with
great care and has fully set out the circumstances which show beyond doubt that there has been bribery and corruption so far as two out of the
three arbitrators are concerned and an utter disregard of the present plaintiffs'' interests, advantage being taken of the incapacity of their father who
is a drunkard and debauchee and was in needy circumstances. I have no hesitation in holding that the view taken by the District Judge is correct.
The award and compromise were in an interpleader suit filed by the Collector on the death of the last descendant of the eldest branch while the
estate was under the management of the Court of Wards. All the persons who claimed an interest in the estate were made parties to this suit. The
sister of the last surviving member of the first branch was the 11th defendant in the interpleader suit and she set up that her son was adopted by the
deceased Ponnusami Maniagar. The father of the present plaintiffs was the 8th defendant in that suit and his two uncles were the 2nd and 3rd
defendants. After written statements were filed and before the case was heard, the parties agreed to refer the matter in dispute to the arbitration of
three persons. One of them was the Zemindar of Perayur (22nd defendant) who admittedly was deeply in debt, the other a money-lender
Nattukottai Chetti, the 23rd defendant, and the third was one Ganapathi Aiyar, a manager of the estate of a minor whose guardian was the
Zemindar. The Zemindar of Perayur had admittedly entered into an agreement (Exhibit G) with the uncles of the father of the plaintiffs in the present
suit (who were the 2nd and 3rd defendants in the interpleader suit) whereby be Vas to finance the litigation on their behalf and to receive the village
of Alagapuri and other benefits referred to in the agreement in addition to the amount spent by him for financing the suit. It is not disputed that after
the compromise decree passed in pursuance of the award'' which he gave as one of the arbitrators he got an assignment of this village and a
promissory-note for 13,000 rupees which was to be paid out of the sum of Rs. 13,000 which was in Court as mesne profits. It is clearly proved
by Exhibit G that he was deeply interested in the success of the 2nd and 3rd defendants in that suit. If they did not succeed in their contention, he
would lose the moneys he spent for financing the suit and also the valuable village and lands agreed to be given to him. After the award was passed
he actually got the village of Alagapuri and other lands by the deed of gift (Exhibit P) executed by the 2nd and 3rd defendants and got a sale-deed
in his favour of the whole of 2nd defendant''s share under the award he gave by the sale-deed (Exhibit U). The other arbitrator Karuppan Chetty
admittedly got an agreement from the 11th defendant in the interpleader suit who is the 21st defendant in the present suit to act as her agent in the
litigation and finance her and subsequently got an agreement (Exhibit JJ.), from the 1st defendant agreeing to finance him. After the award the 6th
defendant who got a share in this compromise brought about with the help of the arbitrators executed Exhibit Q, a mortgage for 24,000 rupees on
the same date as Exhibit.P which the District Judge rightly thinks was propably a bribe to him. It appears from the recitals in Exhibit P that he had
also agreed to finance the 6th defendant. It is also proved that the husband of the sister of the last male holder executed a promissory note for
Rupees 5,000 (Exhibit DD) to one Narayanasami Chetti a few days before the reference to arbitration the money payable being really intended to
go to the two arbitrators.
So far as the award is concerned, it was not seriously pressed before us by the learned Advocate-General as one which any Court could act
upon. It is abundantly: clear from the evidence that while a show was being made of deciding matters referred to them by the arbitrators there were
contemporaneous attempts in which at least two of the arbitrators took a prominent part by which they wanted to bring about a settlement between
some of the parties to the suit behind the back of and prejudicial to the 1st defendant (the father of the plaintiffs) and that even before the award
was given the arrangement evidenced by Exhibit J had been brought about with the help of the arbitrators. According to the arrangement Exhibit J
which is dated the 12th November 1900, the father of the plaintiffs was entirely cut out and the estate was divided between the 2nd and 3rd
defendants in the present suit (who were the 2nd and 3rd defendants in the interpleader suit), the 6th defendant (grandson of the third son of the
propositus) the 9th defendant (grandson of the 7th defendant) and the 21st defendant (the sister of the last holder). It is not pretended that the 21st
defendant who is the sister of Ponnusami Maniagar had any right under the Hindu Law to any share. She set up an adoption of her son but no
attempt was made to prove the adoption at any time and the arbitrators found that the adoption was invalid. Though the award declared that the
2nd and 3rd defendants were the persons entitled to the Zemindari and that in consequence of an arrangement between them the 2nd defendant
who got an assignment from the 3rd defendant was solely entitled it is significant that in the arrangement (Exhibit J) which was handed to the
arbitrators before they gave their award and which I have no doubt was brought about through the active mediation of at least two of the
arbitrators the second defendant who was entitled to the whole estate agreed to share it with the present 3rd, 6th, 9th and 21st defendants. It is
impossible to believe that the 2nd defendant who on the 11th November got the entire estate under the award and would the next day have agreed
to give up three-fourths of it to those whom the award declared to be not entitled to anything and I have little hesitation in holding that the award
and the settlement (Exhibit J) were parts of one design whereby under a show of bona fide litigation and compromise the arbitrators really, wanted
to help the parties in whom two of the arbitrators were deeply interested at the expense of others, As there were minors in the interpleader suit
there would have been difficulty in getting the Court to sanction the compromise unless it was clearly shown to be for the benefit of the minors; but
under the guise of a reference to arbitration and an award passed in favour of one of the parties who was a major and under an arrangement
whereby the party benefitted was generous enough to share it with those who had no interest, everything would have appeared bona, fide. I have
no hesitation in agreeing with the District Judge that the whole thing was a fraudulent scheme to bring into existence an award which would on its
face preclude the Court from going into the merits of the case and to supplement it by an arrangement which divided the spoil-the two arbitrators
getting good share and those in whom they were interested dividing the rest. If the matter stood here, there would have been little difficulty in the
plaintiffs'' way; but it is sought to make them bound by the compromise in these proceedings because their father subsequently entered into another
compromise whereby on the basis of the award and previous compromise he received a small share in the estate out of the share given to 2nd
defendant. It is therefore necessary to see how far the father''s action can bind the sons. So far as the plaintiff''s father is concerned, he is shown to,
be a drunkard and debauchee who took no interest in his sons, Far from being in a position to protect the interests of his children he was hardly
able to protect his own interest. He was a minor at the date of the interpleader suit which was filed in 1899 (C.S. 68 of 1899). As the compromise
to which he was a party was entered into on 30th November 1900 he must have just emerged out of minority. He evidently began his career of
vice early in, life. He took no steps to appear before the arbitrators and adduce any evidence in support of his case. He left the conduct of the
business first to one agent Umayurbagam Pillai under a power of attorney (Exhibit HH) and subsequently to another agent Ramaswami Ayyar
under Exhibit JJ. The District Judge finds that both these agents played him false and colluded with those whose interests were adverse to his and
the evidence and probabilities strongly support this view. The result of the incapacity of the 1st defendant and the fraud of his agents, was that an
award obtained by some of the parties to the suit by fraud and corruption and a compromise (Exhibit J) entered into (even before the award was
passed) with the help at least of two of the arbitrators were filed in Court which completely cut out the 1st defendant. He then filed the petition
(Exhibit GG) through a vakil praying that the award should not be enforced as the arbitrators were guilty of misconduct and had entered into
agreements with two of the persons interested in the litigation, His brother-in-law states that 1st defendant filed the objection to the award after
consulting him and that after it was filed, he (1st defendant''s brother-in-law) had to go to Madras and that during his absence the 1st defendant
was cajoled into withdrawing the objection and consenting to a compromise. The probabilities support the evidence on the point. On the day when
his objections came on for trial, he put in another application through another vakil (Exhibit XXII) stating that he had effected a compromise with
the 2nd and 3rd defendants agreeing to receive ""some properties"" and that his objections need not be considered. The arrangement which h. says
he entered into is embodied in Exhibit K. dated 30th November 1900. The result of this arrangement was that the village of Alagapuri which was
of considerable value and an important item of property, a sum of Rs. 13,000, the property given to the 6th and 9th defendants and the property
given to the 21st defendant who on the face of the award had no interest were excluded from the partition and the plaintiff''s father got a twelfth
share.
A compromise whereby a considerable portion of joint family property has been excluded from partition and given to persons who have no
legal claim whatever, cannot, in my opinion, be binding upon the minors simply because their father was a party to it. It has been held by the Privy
Council in