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Judgment
Horace Owen Compton Beasley, C.J.—These are three linked appeals, namely, Appeal No. 411 of 1925, Appeal No. 439 of 1925 and
Appeal No. 6 of 1926. Of these, Appeal No. 439 of 1925 was argued first as in that the main and the most important contentions between the
parties had to be considered, I propose in my judgment to deal with all the three appeals together.
All these appeals arise out of O.S. No. 67 of 1919 in the Court of the Subordinate Judge of Kumbakonam. That was a suit for partition. The
parties to the suit were all members of an undivided Hindu family related to one another in the manner set out in schedule A to the plaint. The
Hindu family was possessed of considerable immovable property and in the partition suit the plaintiff claimed a half share in the whole property.
The plaintiff stands by himself representing one branch of the family. The genealogical table (schedule A) shows that all the parties to the suit trace
their descent back to one Sepperumal Odayar; and in the judgment of my learned brother Curgenven, J., the genealogical table has been described
in detail and therefore it is unnecessary for me to explain any further he w the parties stand in relationship to one another.
In the Court below a preliminary decree was passed by means of which the plaintiff was given one-fifth share, defendants Nos. 3,4,5, 7 and 8
one-fifth share, the 6th defendant one-fifth share, the 9th defendant one-fifth share, and defendants Nos. 1 and 2 one-fifth share. The learned
Subordinate Judge gave a decree for an account and also directed that the accounting was to be upon the basis of an undivided family although he
found that the family had become divided in status by reason of document Ex. A. This document has been the cause of all the trouble in the suit.
Various constructions have been placed, upon it by the contending parties both here and in the Court below and these appeals depend entirely
upon what view we take of that document. In order that it can be better understood we have to go back to the year 1895. Exhibit A is dated the
25th November of that year and is described as a deed of partition. On that date there were alive Muthu Odayar who died in 1903,
Balasubramania Odayar who died since the suit was filed, Singaravelu Odayar who died in 1917, Somasundara Odayar his son who subsequently
died leaving a widow the 10th defendant, Sivaswami Odayar who died in 1909 leaving a widow the 9th defendant, Gopalaswami Odayar and Siva
Vadivelu Odayar the grandson of Sinnu Odayar and the adopted son of Sendalangara Odayar who was himself the son of Sinnu Odayar, the son
of Sepperumal Odayar the common ancestor. By this deed Balasubrahmanya Odayar separated himself from the rest of the family and under
Clause 1 of the deed it was agreed that he should take one-fifth share of the whole property the remaining four-fifths share being agreed to be
allotted in five equal shares to (1) Singaravelu Odayar and Somasundara Odayar, (2) Sivaswami Odayar, (3) Gopalaswami Odayar and Vijia
Raghunathan, (4) Balaguruswami and Balakrishnaswami and (5) Siva Vadivelu the adoptive father of the plaintiff--I describe him as the adoptive
father of the plaintiff because in Ex. A his adoption is recognized and the learned Judge in the Court below has found that adoption proved. The
consideration for this document is set out in the preamble to it and is stated to be the fact that disputes might arise in the family in connection with
the partition and heavy loss might be sustained thereby, that Samu Odayar and his father Ramu Odayar (Nos. 4 and 11 in the genealogical table)
had acquired properties by bard work and brought the family to a very prosperous condition and the natural affection towards his heirs, namely,
Singaravelu Odayar, Sivaswami Odayar, Gopalaswami Odayar, Balaguruswami and Balakrishnaswami and also towards Balasubrahmanya.
Under Clause 6 of the document Muthu Odayar gave away his share in the family properties as he had no heirs and was advanced in age but there
is a reservation that during the lifetime he should be at liberty to utilise a sum of Rs. 4,000 per annum out of the income from the four-fifths share of
the properties (ascertained in Clause 1). Another clause of importance is Clause 3 which provides that the sharers are to take the immovable
properties specified in list A and the outstandings in list C and that Balasubrahmanya the outgoing member is to take the immovable properties
specified in list B. Clause 6 must again be referred to here as it is there provided that the sharers (as ascertained in Clause 1) are during the life time
of Muthu Odayar to live as members of one family and that after him partition of the property is to be effected according to the shares given in
Clause 1. Then Clause 8 which reads as follows:
So long as the sharers other than Balasubrahmanya Odayar of us remain joint without effecting a division according to the shares mentioned in
para. 1 hereof, the family shall be treated as an ordinary undivided Hindu family subject to the law of survivorhship.
It is this clause that has given rise to the whole of the trouble. In the absence of such a clause it would be a very difficult task for the plaintiff to
contend that Ex. A did not effect a division in status between those members of the family who were parties to it, Balasubrahmanya of course going
out altogether and having by the deed separated himself entirely from the family. The construction of Ex. A would then, in my view, have been quite
a simple matter and it would have been that the family agreed to divide in status according to certain shares but to live together until the death of
Muthu Odayar. The case would then, in my view, have been a plain sailing. But there is Clause 8 and this has enabled the Advocate-General on
behalf of the plaintiff to contend that there was no division in status created by Ex. A and that Ex. A must be ignored altogether and the family dealt
with in the partition suit as an undivided Hindu family subject to none of the provisions of Ex. A. This, he contends, entitles the plaintiffs to a half-
share of the family property upon a division. Alternatively he argues that Clause 8 is so inconsistent with the other clauses in the document that it
alone must be applied. On the other hand it is contended by Mr. Varadachari for the 1st defendant that, if Clause 8 is inconsistent with Clause 1,
then the former must be cut out and the parties governed by Clause 1. Mr. K.S. Krishnaswami Ayyangar for the 6th defendant contends that full
effect must be given to Ex. A, that its provisions are not inconsistent with one another and that both Clause 1 and Clause 8 can be taken together
and a meaning given to the document. In this contention he is supported by Mr. K.V. Krishnaswami Ayyar for the 14th respondent. The conflicting
contentions of the parties, therefore, may be briefly stated as follows: The plaintiff wishes to ignore Ex. A altogether and treat the family as an
undivided family and the defendants contend for the position of a division in statue brought about by Ex. A and an agreement under it to live as if
the family were an undivided family but not really an undivided family and an agreement to divide by metes and bounds at a later date in
accordance with the shares as ascertained in Clause 1 of the document. Mr. Varadachari and Mr. K.S. Krishnaswami Ayyangar, he wever, do not
go the whole way together in that argument. The latter argues that Clause 8 is not repugnant in any sense and that what it means is that although the
family is a divided family it is to be treated as if it were an undivided family and as if the members of it at the time of the execution of the document
had agreed together to dispose each of their shares to the others in the event of their dying without male issue. Mr. Varadachari on the other hand
contends that there could be no such disposition in law or in fact and that Clause 8 itself is repugnant to the rest of the other clauses in the
document. The Advocate-General also contends that the evil of this clause is that it is an agreement to alter the ordinary rule of succession and,
therefore, is quite inconsistent with the position of a division in status which creates a tenancy-in-common because it is provided that the property is
to go by survivorship instead of by inheritance as it would do in the case of a tenancy-in-common. The learned Subordinate Judge having held that
under Clause 1 of Ex. A there was a disruption of the joint family and, therefore, a tenancy-in-common says that Clause 8 creates a coparcenary
with the rights of survivorship, that where there is a disruption of the coparcenary the right of survivorship is gone and that a coparcenary is purely
a creature of law and cannot be created by the act of parties. He has, therefore, held that Clause 8 is wholly inconsistent with the scheme of
division set out in the previous paragraphs and has rejected Clause 8 on the ground that where there are two clauses in a deed which are wholly
inconsistent with and irreconcilable to each other the former prevails. He has further held that Clause 8 relating to the right of survivorship prevents
the devolution of property to female heirs and is void since it alters the line of succession allotted by the Hindu Law.
We have first of all to consider whether the claim to a half share in the property put forward by the Advocate-General can possibly be
sustained. If a document is unambiguous in its terms, then little difficulty arises. So far as the terms of the document itself are concerned, it is
contended by the learned Advocate-General and Mr. Varadachari that it is impossible to he ld that they are unambiguous; and we have been
addressed at great length for very many days as to the meaning or possible meaning or impossible meaning of its provisions. It is obvious that when
Clause 8 is contrasted with the other clauses, they are, without a consideration of the intention of the parties, irreconcilable. We have, therefore, to
see whether we can gather from this document what the intentions of the parties to it were coupled with their conduct subsequent to it is the duty of
the Court to give effect to a document if it possibly can. The Advocate-General invites us to reject the document altogether except as bringing
about the separation of Balasubrahmanya from the rest of the family. But I am unable to agree with the suggestion put forward by him that all that
was intended by the parties to this document was by it merely to separate Balasubrahmanya from the rest of the family. To begin with in the
preamble it is stated:
In consideration of the fact that disputes might arise in our family in connection with partition and heavy loss might be sustained thereby.
It cannot, in my view, have been intended by this merely to refer to disputes between Balasubrahmanya and the other members of the family as
it seems to me obvious that it refers to possible disputes between all the members of the family on a partition. Then again in Clause 1 the remaining
four-fifths shares are divided up into five equal shares and allotted to groups Nos. 1 to 5. If the document was merely entered into for the purpose
of separating Balasubrahmanya from the rest of the family, it was unnecessary to deal with any of the remaining four-fifths share by dividing them
equally into five shares. AH that it was necessary to do was to give Balasubrahmanya his one-fifth share and let him go out. Then under para 6
Muthu Oiayar gives up his share in the family having no heirs and being advanced in age; and there is the provision already referred to that the
other sharers are during his life-time to live as members of one family and after his death to effect a partition. The parties to the document must
have had some intention when they made, that arrangement. Having ascertained the shares in Clause 1, in Clause 6 not only do they agree after
Muthu Odayar''s death to effect a partition but to effect it according to the shares as ascertained inch 1, Then in Clause 8 a division according to
the shares mentioned in Clause 1 is referred to. Therefore, in my opinion, it is impossible to he ld that the intention of the parties by this document
was merely to separate Balasubrahmanya. The documents must be given a meaning. There appear to be two possible alternatives, namely, that the
parties intended by this document to divide in status but to remain, although divided in status, as an undivided family and after Muthu Odayar''s
death to effect a division by metes and bounds in accordance with the shares agreed upon by Clause 1, that they recognised that by executing Ex.
A they were dividing in status but wished to live together as one family until Muthu Odayar''s death and that they decided that during that time and
until they did effect a partition by metes and bounds the rule as to the devolution of property in a Hindu undivided family should apply. The other
possible alternative is that they did not intend to divide themselves in status by Ex. A that all they intended to do was to postpone a division until
some future date and that when they did divide the division was to be in accordance with Clause 1 of the document. But before the latter
alternative is considered, we have to consider whether the execution of Ex. A, quite irrespective of what the intentions of the parties might be, did
bring about a disruption of status and upon this point there are some cases which have to be considered. The first of these is Appovier''s case--
Appovier v. Rama Subba Aiyan 11 M.I.A. 75 : 8 W.R. 1 : 2 Sar. 218 : 1 Suther 657 a decision of the Privy Council. There it was held that
according to the true constitution of an undivided Hindu family no individual member of the family, whilst it remains undivided, can predicate of the
joint and undivided property, that he has a certain definite share. The proceeds of undivided property must be brought to the common chest or
purse, and there dealt with according to the modes of enjoyment by the members of the family. But if the members of an undivided family agree
among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, than the
character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and each member has
thenceforth a definite and certain share in the estate, which he may claim to receive and enjoy in severalty, although the property itself has not been
actually severed and divided. Where, therefore, a deed of partition was made and executed by the other members of an undivided family dealing
with and making actual partition of a portion of the joint estate but having the remainder to be divided at a future period in the same manner such
deed vas held to be a division of right operating is a conversion of the tenancy and a change of status in the family so far as the property specified
changing as it were the joint tenancy thereof into a tenancy in common and by operation of law making the members of the previously undivided
family a divided family in respect of such property. At page 89 Page of 11 M.I.A.--[Ed.] Lord Westbury in delivering the judgment of the Judicial
Committee states as follows: ""Certain principles, or alleged rules of law, have been strongly contended for by the appellant. One of them is, that if
there be a deed of division between the members of an undivided family, which speaks of a division having been agreed upon, to be thereafter
made, of the property of that family, that deed is ineffectual to convert the undivided property into divided property until it has been completed by
an actual partition by metes and bounds. Their Lordships do not find that any such doctrine has been established; and the argument appears to
their Lordships to proceed upon error in confounding the division of title with the division of the subject, to which the title is applied. According to
the true notion of an undivided family in Hindu Law, no individual member of that family, whilst it remains undivided, can predicate of the joint and
undivided property, that he, that particular member, has a certain definite share. No individual member of an undivided family could go to the place
of the receipt of rent, and claim to take from the Collector or Receiver of the rents, a certain definite share.
He then proceeds to say that the members of an undivided family can agree amongst themselves that the property shall be the subject of
ownership in certain defined shares and this alters the character of undivided property, that joint enjoyment is taken away from it and the member
has a right to claim to receive and enjoy it in severalty and that by such an agreement therefore the joint tenancy is converted into a tenancy-in
common. In Balabux v. Rukhmabai 30 C. 725 : 5 Bom. L.R. 469 : 8 Sar. 470 : 7 C.W.N. 642 : 30 I.A. 13 the Privy Council held that there is no
presumption when one co-parcener separates from the others that the latter remain united, that where it is necessary, in order to ascertain the share
of the outgoing coparcener, to fix the shares which the others are or would be entitled to, the separation of one may be said to be the virtual
separation of all and that an agreement amongst the remaining coparceners to remain united or to reunite must be proved like any other fact. There
can be no question in this case of any agreement to reunite as there were minors in existence and such minority renders any such agreement
impossible. The importance of the decision lies in its placing the burden upon those who maintain that there has been no division in status of
displacing the presumption which this judgment he lds arises. In a later case Parbati v. Naunihal Singh 3 Ind. Cas. 195 : 31 A. 412 : 6 A.L.J. 597 :
10 C.L.J. 121 : 13 C.W.N. 983 : 5 M.L.T. 427 : 11 Bom. L.R. 878 : 36 I.A. 71 : 19 M.L.J. 517 another decision of the Privy Council, it was
held that where one member of the family effects a separation of himself from the family and where the ascertainment of the shares of the remaining
members of the family is merely incidental to that one member''s separation the presumption is that the other members remain undivided. Both
Appovier''s case 11 M.I.A. 75 : 8 W.R. 1 : 2 Sar. 218 : 1 Suther 657 and the case in Balkishen Das v. Ram Narain Sahu 30 C. 738 : 15 Bom.
L.R. 461 : 30 I.A. 139 : 7 C.W.N. 578 : 8 Sar. 489 were considered and the principles laid down in them followed but it was stated that the High
Court had proceeded in. an erroneous method in considering whether each document was by itself sufficient to rebut the prima facie presumption
that as the family was joint before 1861 it continued to be joint, and omitting to take into account the cumulative effect of all the documents which
taken together showed that all the transactions for many years could only be reconciled and made consistent on one hypothesis, namely, that the
important document was a genuine document and the agreement in it embodied a real agreement. There, after the death of one of the members of
the joint family in 1861 the other members mutually agreed that the joint property should thenceforth be held and enjoyed by the various members
of the family in certain defined shares which they specified in a petition to the Collector to have their names entered to that effect in the official
papers of the village. This was done, the petition was filed and it was held that on the evidence and in the circumstances of the case a partition of
the property had been effected in 1861 and that the transactions, and conduct of the members of the family, with respect to the management of the
property had been on the basis that it was held in separate shares from that time, In a later case, namely, AIR 1925 49 (Privy Council) the Privy
Council hel d mat when a member of a joint family has separated, an agreement by the remaining members to continue undivided may be inferred
from the way in which their business is carried on after the separation. On page 257 Page of 48 M.--[Ed.] it is stated in the judgment: ""In coming
to a conclusion that the member of a Mitakshara joint family have or have not separated there are some principles of law which should be borne in
mind when the fact of a separation is denied. A Mitakshara family is presumed in law to be a joint family until it is proved that the members have
separated. That the co-parceners in a joint family can by agreement amongst themselves separate and cease to be a joint family, and on separation
are entitled to partition the joint family property amongst themselves is now well-established law.
Then a reference is made to Appovier''s case 11 M.I.A. 75 : 8 W.R. 1 : 2 Sar. 218 : 1 Suther 657 and it proceeds: ""But the mere fact that the
shares of the co-parceners have been ascertained does not by itself necessarily lead to an inference that the family had separated. There may be
reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be.
The result seems to me to be that where the ascertainment of the shares of the remaining co-parceners is merely incidental to the separation of
one of them, no presumption arises that the family hitherto undivided has become divided. The High Court judgment in this case is reported in
Palani Ammal v. Muthuvenkatachala Manigarar 43 Ind. Cas. 833 : 33 M.L.J. 759 On page 780 Page of 33 M.L.J. [Ed.] Kumaraswami Sastri, J
after reviewing a number of authorities upon the question of whether the separation of one member ipso facto effects a separation between all the
others stated his opinion to be that where 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 coparcener without knowing he w many co-parceners there are and their shares)
the status of the others is unaffected by a decree or division in favour of one member.
Syed Kasam v. Jorawar Singh 68 Ind. Cas. 573 : 50 C. 84 : 16 L.W. 223 : 31 M.L.J. 46 : 18 N.L.R. 127 : AIR 1922 P.C. 353 : 43 M.L.J.
676 : 21 A.L.J. 57 : 25 Bom. L.R. 1 : 37 C.L.J. 73 : 27 C.W.N. 179 : 49 I.A. 358 is another case to which we were referred. There a member of
a joint Hindu family governed by the Mitakshara claimed his share of the family property and the members of the family agreed to appoint an
arbitrator to partition the property among them and to accept his partition and it was argued that this agreement to appoint an arbitrator effected a
severance of the joint estate. This contention the Privy Council accepted and at page 92 Page of 50 C.--[Ed.], Viscount Cave states as follows: ""It
is settled law that in the case of a joint Hindu family subject to the law of the Mitakshara, a severance of estate is effected by an unequivocal
declaration on the part of one of the joint he lders of his intention to he ld his share separately, even though no actual division takes place; and the
commencement of a suit for partition has been held to be sufficient to effect a severance in interest even before decree.
But the facts of this case are very different to those in that case on account of Clause 8 of the present agreement. Whilst that remains, it seems
to me that it cannot be held that the ascertainment of the shares of the co-parceners in the earlier clauses of it necessarily brings about a division in
status. It seems to me that in all the cases to which we were referred upon this point, upon the facts of them a present intention to divide in status
was apparent. In this case, as I have already said, in the absence of Clause 8, such an intention is discoverable But effect has to be given to this
agreement, and to Clause 8, unless it can be shown that whatever the intention of the parties to the agreement may have been, the ascertainment of
the shares of the remaining members of the family must in law operate as a division in status No authority for this proposition has been put before
us and I am clearly of the opinion that such a proposition as that cannot be supported by reference to any of the cases referred to. One fact must
not be overlooked and that is that Ex. A was drafted by a Vakil and it is hardly likely that he would have drafted a document intending in the earlier
part of it to convert the estate into a tenancy-in-common and yet in the latter part of it to Preserve the coparcenary. He cannot have intended to
disrupt the status of the family and yet to apply the prinicple of survivorship to it. This would, in my view, have created an impossible position.
What, therefore, was it that the parties intended? It was contended before us that the wishes of Mutha Odayar were intended to be given effect to
and they were that the family should remain an undivided family during his lifetime. He was an old man and willing to give up his share in the family
property to the others. I think that this contentions well founded and that in deference to Muthu Odayar''s wishes the family agreed to remain
undivided during his lifetime and had no present intention at the date of the execution of Ex. A to divide in status at all. Clearly there had been
disputes in the family. The adoption of Siva Vadivelu was open to question and in Ex. A that matter was set at rest. There was also other matters
which required adjustment and there is nothing unreasonable in supposing that when the parties came together for the purpose of dividing
themselves from Balasubramania, they took that opportunity of settling once and for all, all the matters then in dispute and likely to cause disputes
thereafter--in deed it is so stated in the document--that there never was any intention to become divided in status but that they agreed to a future
partition and that when the occasion for it should arise there should be no dispute as to the shares of the co-parceners on such a partition. No
other view of the intention of the parties seems to me possible and I have no difficulty in thinking that such was the intention. That such was the
intention of the parties was nobody''s case in the appeal but the comment to be made upon that is that all the parties to the appeal were trying to
get a larger share of the family property and that this case suited no one. The view that I have taken is strongly supported by the subsequent
conduct of the family. They continued to live as an undivided family throughout and it was not suggested that there was any documentary evidence
faintly suggesting a previous division in status except Ex. VI (a) a letter addressed to the Chairman, Municipal Council, Kumbakonam, and signed
by Sivaswami Odayar. Certain voters took exception to the candidature of Sivaswami Odayar at the Municipal elections because Siva Vadivelu
was already a Municipal Councillor and the rules framed by Government allowed only one member of an undivided Hindu family to be registered
as a person qualified to be elected or to vote and it was, therefore, claimed that the nomination of Sivaswami Odayar should be rejected and Ex.
VI (a) represents Sivaswami Odayar''s answer to this objection. Whilst setting out other answers the following answer is given: ""Even admitting for
the sake of argument that the rule referred to is capable of the interpretation put upon it by the petitioners our family might for the purpose of this
objection be legally considered as a divided one under the terms of a registered document entered into among the members thereof dated the 25th
November, 1895. Each member is, therefore, entitled to have his name registered separately provided he possesses the requisite qualifications.
This answer is by no means definite. Certainly it does not unequivocally state that the family was a divided one; on the contrary it seems to
admit that it is not but ought for the purpose of the objection to be considered as such. I cannot take this answer as in any way indicating that the
family considered that a division had taken place by means of Ex. A. This is the only document which by any possible stretch of imagination can be
said to support the respondent''s case. On the other hand there are a number of documents which indicate that the family remained undivided. In
Ex. D, a petition, dated 1904, Siva Vadivelu is described by the 1st defendant as his undivided brother. Exhibit K.K. is the written statement filed
by Singaravelu Odayar in O.S. No. 42 of 1908 in the Sub-Court, Kumbakonam, and in para. 4 of it is stated:
Myself, the defendants Nos. 8 to 11 and the deceased Sivaswami Odayar are members of an undivided family.
Sivaswami Odayar died in 1909 before this written statement was filed. Then again in para. 9 it is stated: ""The said Sivaswami Odayar and
ourselves were members of an undivided family.
This written statement was adopted by Gopalasami Odayar, the 8th defendant in that suit, for himself and as guardian of the minor 11th
defendant and also by Balaguruswami Odayar and Balakrishna Odayar. Written statements in O.S. No. 132 of 1917 in the Court of the
Additional District Munsif of Tiruvalur were also filed of which Ex. C-13 is an example and there also Gopalaswami Odayar stated that the 2nd
defendant in that suit was his undivided brother. There are other documents such as Exs. CC, CC-1, PP which are quite incompatible with any
other position than that of an undivided family.
Much was addressed to us in argument upon the meaning of the words in Clause (8) ""the family shall be treated as an ordinary undivided
Hindu family."" It was contended that the use of the word ""treated"" implied that the family was not actually an undivided family because ""treated"" is
to be read as ""deemed"" but although upon a strict construction of the word ""deemed"" it may possibly imply something different to actual, I do not
think that when the whole of the clause is read, it means anything else than an actual ordinary undivided Hindu family. The Vakil who was
responsible for drafting the document cannot have intended to say that a tenancy-in-common was nevertheless to ""be deemed to be an undivided
Hindu family subject to the law of survivorship."" I think that it is more probable that he had in mind the possible result of the earlier ascertainment of
the shares of the members of the family and that in Clause (8) he decided to make it clear that there had been no division in status by that
ascertainment and so emphasized the retention of the undivided status in order to remove any possible misconception. This is the conclusion I have
arrived at as to the construction of Ex. A and, in my view, it cannot be argued that it is not binding upon the plaintiff. It is an agreement which, in
the absence of any authority to the contrary, can be validly entered into and was entered into by his adoptive father Seva Vadivelu and was an
agreement between all the adult members of the family. There was certainly consideration for it in that it settled the disputes between the parties
and recognized the adoption of the plaintiff''s adoptive father and in fact gave him a somewhat larger share than he would have got by reason of
such adoption and further more there was a relinquishment of Muthu Odayar s share. In view of this finding that there was no disruption in the
family on the date of Ex. A even in status and that the family remained undivided, it is unnecessary to deal with the arguments of Counsel based
upon a division in status effected on the date which Ex. A bears. On the question of upon what basis the accounts are to be taken it follows from
this decision that it must be on the basis of an undivided family from 5th November, 1917, and following the form in Sri Ranga Thathachriar v.
Srinivasa Thathachariar 104 Ind. Cas. 472 : 50 M. 866 : 26 L.W. 125 : 53 M.L.J. 189 : 39 M.L.T. 234 : AIR 1927 Mad. 801. I have arrived at
the same conclusion upon this point as that of the learned Subordinate Judge but of course for different reasons, because he found that Ex. A did
effect a division in status. I agree with the learned Subordinate Judge also in rejecting the plaintiff''s claim to past mesne profits in respect of items
C-5 and C-7 against the 27th and 28th defendants as he has found that they were not in adverse possession and I am not inclined to disagree with
that finding. The result of this, therefore, is that the appeal must be dismissed with costs. Two sets of costs to respondents. Defendants Nos. 1, &
and 9 in one group and defendants Nos. 3, 4 and 6 in the other group. (Defendant No. 28, who does not ask for any costs).
With regard to Appeal No. 411 of 1925 the only question is what was the construction to be placed upon Clause (8) of Ex. A. That only fell
for discussion in the event of our he lding that Ex. A effected a division in status and as we have held that it did not, this appeal is not capable of
further argument but is allowed to the extent indicated in the judgment'' of Curgenven, J. Costs of all parties to come out of the estate. Certain
other matters are left over for future argument.
With regard to Appeal No. 5 of 1926 I agree with the conclusions of my learned brother whose judgment I have read and with his reasoning
also. This appeal must be dismissed with costs.
Curgenven, J.
These three appeals arise oat of a suit for the partition of the joint property of a family of Odayars known as the Thannirkunnam family. This
property comprised the whole or portions of several villages in the Tanjore District, as well as moveables and Outsandings, the whole amounting
according to the plaintvaluation, to some four and a half lakhs. The following is the family genealogical table:
(1) SEPPERUMAL
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(2) Sinnu. (3) Subrahmanya (4) Ramu
| | |
(5) Sendalangara |----------------------| (11) Samu
died January, (8)Kuppu (9) Muthu (died 1869).
1877) | (died June. |
| (10) Balasubrah- 1903). |
(6) Sivavadivelu manya |
(died 1903) (died since suit). |
| |
(7) Plaintiff. |
|----------------|----------------|-------------|----------|
W. 1 W. 1 W. 3 W. 3 W. 3
(12) Ayyathorai (13) Singara- (14) Siva- (15) Siva (16) Gopala-
(died 1888). velu swami Vadivelu. swami
| (died 31st (died January defendant No. 1
| May, 1917). 1909) |
-------------- | | |
| | | | |
(17) Bala- (18) Bala adoption (25) defendant (26) Vijiaraghunatha
guruswami, Krishna, (not disputed) No. 9. defendant No. 2.
defendant defendant |--------------------------|
No. 3 No. 4 |
| | |-------------------------|
| (22)Ayyathorai 23 Somasundara (20) Swaminathan,
| defendant (died) defendant No. 6
| No. 8 |
| (24) defendant No. 10.
|----------------------------------|
|-----------------|------------------|
(19) Venkatramin, (20) Saminathan, (21) Defandant No. 7.
defendant No. 5. defendant No. 6.
The family lived in a condition of undisputed jointnees until 1895, but not without disputes regarding certain matters which will be referred to
later. In that year all the adult members subscribed to a partition deed, Ex. A, and it is upon the construction of this document that the first two of
three appeals have to be decided.
The questions to which the document Ex. A gives rise are, firstly, what does it mean and, secondly, is it binding upon the signatories to it and
those claiming under them. Very long and elaborate arguments have been addressed to us upon the former of these two questions, the parties
ranging themselves into three main groups; each with its own construction to put forward. he w these groups came to be formed, and in what
circumstances the document originated, need to be borne in mind in attempting to discover the intention underlying the deed.
The family, as the genealogical table shows, consisted in 1895, of three main branches, those of Sinnu, Subrahmanya and Ramu Odayar.
Sinnu''s branch depended for its existence upon the fact of the adoption of Siva Vadivelu, a member of Kamu''s branch, by Sinnu''s son
Sendalangara. Subrahmanya''s branch was represented by two members, Balasubrahmanya and Muthu. The third branch, that of Ramu, included a
number of persons, Ramu''s son Samu having had five sons. All those defendants who belong to the family are representatives of this branch. Up to
1895, as has been said, the family formed a single coparcenary, although being possessed of extensive property and engaged in various activities
its members may have exhibited'' some external marks of separateness. Sometime before the date of Ex. A various disputes arose. One, it is said,
had reference to Siva Vadivelu''s adoption. Another was concerned with the nature of some of the property, whether it was self-acquired or joint.
Balasubrahmanya, of the second branch, evinced a desire to get his share divided, while Muthu of the same branch, was strongly of opinion that
the whole family should remain joint. It was a question therefore whether to agree to his division, and if so, what share he should get. Some of
these circumstances will need to be considered again when the binding character of the document is inquired into. It is sufficient to say here that
Balasubrahmanya had his way and split off from the remainder of the family; and this seems primarily to have afforded occasion for the deed, At
the same time there is no doubt that the opportunity was availed of to compose the other outstanding questions, and to settle once for all he w
upon a general partition the property was to be allotted.
The document begins by calling itself a deed of partition between the signatories a description which the cleavage with Balasubrahmanya would
in itself justify and adverts to the danger that disputes might arise in connexion with partition and heavy loss be occasioned thereby. Grounds are
then found in the services to the family of Ramu Odayar and his son Samu Odayar for giving their branch special consideration Accordingly, ""the
partition arrangements we have come to amongst ourselves are as follows. Then follow nine clauses setting forth these arrangements. Of these, the
language of Clauses (1), (3), (6) and (8) must decide the construction to be placed upon the document. Clause (1) assigns to Balasubrahmanya a
one-fifth share and provides as regards the remaining four-fifths that the division is to be into five equal shares-four to go to the four sub-branches
of the third branch, and one to Siva Vadivelu. Clause 3 defines Balasubrahmanya''s share by means of a list, and collects the remaining property
comprising the family property of the remaining members, into two other lists. Clause (6) recites that Muthu Odayar, out of natural affection for
Samu Odayar''s heirs and because they would otherwise get a smaller share, gives them his share in the family property, being himself without heirs
and advanced in years. In view of this the rest of us shall during the lifetime of Muthu Odayar live as members of one family. After Muthu Odayar,
partitionshall be effected according to the sharps laid down in Clause 1."" Clause (8) runs as follows: So long as the sharers other than
Balasubrahmanya Odayar of us remain together without effecting a division by metes and bounds according to the shares mentioned in Clause (1),
the family shall be regarded as an ordinary undivided Hindu family subject to the law of survivorship.
The meaning of these clauses, as I have said, has been variously interpreted The plaintiff, while very willing to avail himself of the document so
far as it confirms his father s adoption, contends that Clause (8) shows that the family remained joint and that the specification of shares in Clause
(1), being re pugnant to the notion of a joint family, is invalid. He asks for a half share in the entire remaining property, including that resigned by
Muthu Odayar. A directly contrary view is pressed upon us on behalf of the 1st, 2nd and 9th defendants. One of Samu Odayar''s sons,
Sivaswami, died subsequent to the execution of the document, leaving a widow, the 9th defendant. Of course, if the family remained joint she will
only be entitled to maintenance. But if Ex. A created a severance of status, the question whether or not she is to take her husband''s share will
depend upon whether, in spite of that circumstance, the rule of survivorship is to be applied under Clause (8). She, therefore, contends for the
virtual rejection of this clause. The 1st defendant is the sole surviving full brother of Sivaswami Odayar, and supports the widow in consideration of
his reversionary interest. The third group--descendants of Ayyathorai Odayar (defendants Nos. 3, 4, 5, 7 and 8) and Singaravelu''s adopted son
(6th defendant)--contend that although Clause (1) may have effected a severance of status, yet it is possible to give legal effect to Clause (8) in
such a manner as to apply what is, within certain limits, a rule of survivorship. The Principal Subordinate Judge has found in favour of the
construction contended for by defendants Nos. 1, 2 and 9. This has given rise on the one hand to an appeal by the plaintiff. (A.S. No. 439) and on
the other an appeal by defendants Nos. 3 to 8 (A.S. No 411.)
In approaching the construction of the document, no authority is needed for the principle that every endeavour should be made to ascertain
from it, read as a whole, what was the expressed intention of the parties to it. Each part must, if possible, be reconciled to the remainder, because
it must be presumed, unless and until such presumption appears to be forbidden by the language, that it was drafted to subserve a consistent
purpose and course of action. Observation of this principle would seem to require that those constructions which would reject either Clause (1) or
Clause (8) should, to begin with at least, be put on one side; because it seems clear that the adoption of either must frustrate some part of the
intention with which the settlement was executed. There remain two interpretations to consider. The first supposes Clause (1) to have effected a
division in status, while Clause (8) preserves the rule of survivorship. The second, which none of the parties finds it in his interest to support, but
which may not be the less worth considering on that account, would construe Clause (1) as no more than an agreement into what shares the
property should be divided after Muthu Odayar''s death, and not as evidencing a resolve immediately to sever in statute. The clause would then
plainly be reconcilable with Clause (8).
Dealing the merits of these two views, it may be conceded that, but for the existence of Clause (8) the natural view, and the view supported by
authority, would be that a severance of status resulted from the declaration contained in Clause 1. So far as the partial partition of
Balasubrahmanya''s share was concerned, all that was needed was to specify his one-fifth, and to leave the remaining members as an undivided
family in possession of the remainder. Without doubt, therefore, a further intention is denoted by the apportionment of the four-fifth remaining into
five equal shares. It has been urged that, whether that intention was to divide prospectively, or immediately, the mere definition of shares in law
converted the joint tenancy of a coparcenary into a tenancy-in-common because an essential incident of a coparcenary is that no member can
predicate what his share would be upon a partition. Before considering the case law upon this point, a few elementary considerations need to be
stated. The members of a coparcenary own their property jointly, and the interest which each member has in it fluctuates with the number of other
members, as some are born and some die. It fluctuates by operation of the rule of survivorship, and since that rule is a necessary incident of the
status, so must be the liability to fluctuation. Hence abrogation of rule, rendering the shares fixed, necessarily involves a disruption of the joint
status. The members become tenants-in-common, each possessed of individual rights which they may dispose of as individual property. They have
substituted the rule of inheritance for the rule of survivorship. But if they retain the rule of survivorship, it is not easy to understand he w they can be
said to have fixed their shares, because by the terms of their agreement those shares are still subject to the fluctuation produced by the rule
operating upon them. Merely to specify, therefore, that on partition the property will be divided according to a certain method, and until then the
members will remain joint, would not seem, on first principles, necessarily to precipitate a severance. A simple illustration of the distinction I seek
to draw may be given. Suppose four brothers and a cousin (son of a deceased paternal uncle) compose a joint family. Upon a partition, the cousin
would take half the property, the primary division being per stirpes, and the four brothers would each take one quarter of the other half. Suppose,
however, that these five members come to a settlement whereby they agree that, when a partition takes place, it is to be per capita throughout
instead of per stirpes in the first instance, so that each member would obtain one-fifth, the family in the meanwhile to remain joint. There has been a
substitution of one rule for another for the ascertainment of shares, but the1 shares are not thereby any the more or the less ascertained. Much less
has any division of rights been effected. Yet that is very much what has occurred here. What the parties in effect said was, ""We will recognize
Sivavadivelu''s adoption, but when come to divide we will ignore it, and count this member as though he occupied his natural place as a son of
Samu Odayar"": though it may be a question he w the rule of survivorship should be applied to such an arrangement. I do not think that there is any
authority for the view that such an agreement necessarily causes a division of status. The dicta of Lord Westbury in Appovier''s case, Appovier v.
Rama Subba Aiyan 11 M.I.A. 75 : 8 W.R. 1 : 2 Sar. 218 : 1 Suther 657 do not apply to such circumstances, because there the family members
agreed that thenceforth the property should be subject to ownership in certain defined shares, so that there was a division of rights, although it was
not followed up by an actual partition. In Balakrishen Das v. Ram Narayan Sahu 30 C. 738 : 15 Bom. L.R. 461 : 30 I.A. 139 : 7 C.W.N. 578 : 8
Sar. 489 the members of a joint family executed an ikrarnama, and the question was whether it effected a division in status. Their Lordships
experienced ""no difficulty in the construction of the ikrarnama, in which it is stated in unambiguous terms that defined shares in the whole estate had
been allotted to the several co-parcencers,"" and that they were thereby converted from joint tenants into tenans-in-common. In the present case,
assuming the retention of the rule of survivorship, the conversion of the, joint tenancy into a tenancy-in-common can scarcely have occurred.
Another case in the same line of Privy Council decisions is Parbati v. Naunihal Singh 3 Ind. Cas. 195 : 31 A. 412 : 6 A.L.J. 597 : 10 C.L.J. 121 :
13 C.W.N. 983 : 5 M.L.T. 427 : 11 Bom. L.R. 878 : 36 I.A. 71 : 19 M.L.J. 517 which related to an agreement by the members of a joint family
that the family property should be thenceforth held and enjoyed by the various members of the family in certain defined shares. In deciding that the
agreement produced a division in status their Lordships were, I think, more concerned with the construction of the documents evidencing the
agreement than with their legal effect, once it was found that an immediate division into shares was intended. The use of the word ""thenceforth"" will
be noted. Another and not dissimilar case is Syed Kasam v. Jorawar Singh 68 Ind. Cas. 573 : 50 C. 84 : 16 L.W. 223 : 31 M.L.J. 46 : 18 N.L.R.
127 : AIR 1922 P.C. 353 : 43 M.L.J. 676 : 21 A.L.J. 57 : 25 Bom. L.R. 1 : 37 C.L.J. 73 : 27 C.W.N. 179 : 49 I.A. 358 of some assistance here
because of an observation that the agreement, was ""quite sufficient to effect a severance in interest and to prevent the share of Nain Singh from
passing by survivorship."" Only by holding that Clause 8 of the present agreement cannot operate can the agreement itself be held to effect such a
severance.
I think it will be found that in each of these cases a present intention to divide in status was discovered, and none of them is authority for the
view that the parties cannot agree to certain principles of partition, to be applied in future without becoming tenants-in-common. This is in my view
disposes of the contention that the family members here, irrespective of their own wishes, and irrespective of the terms upon which they proposed
to he ld their property until Muthu Odayar''s death, must be regarded as severed in status. Before going further, it will be convenient to consider
what their actual intention seems to have been. The document was drafted by a Vakil, and although unfortunately it has given rise to this costly
litigation, it is not unreasonable to suppose that it was drafted with due regard to the principles of Hindu Law. It can hardly be supposed that
anyone conversant with those principles would draw an instrument of so hybrid a character that in one place it divides status and makes the
signatories tenants-in-common, while in another it applies to their property so well-understood an incident of the joint family status as the rule of
survivorship. It is not too much to say that this rule is the logical outcome of conditions wholly at variance with the incidents of a co-tenancy. If Mr.
K.S. Krishnaswami Aiyangar, in his endeavours to reconcile the two things, has convinced me of one thing it is the extreme difficulty of the task
which was set him. He had to admit that the survivorship principle could only be applied with modification; and Mr. Varadachariar found no
difficulty in suggesting problems and anomalies to which its application would give rise. Let us then see what the members of the family would seem
to have desired. One thing is clear,--that very great deferece was paid to the wishes of Muthu Odayar. He was the only surviving member of his
generation, and, as the document says, ""advanced in years."" His name stands first in the deed. He was to give up his share to the others, and, as
the evidence shows, he was most anxious that, apart, from Balasubrahmanya''s separation, which he deplored, the family should remain joint.
Doubtless some slur may attach to family members who dispute and divide. It was, therefore, provided that so long as he lived there should be no
further partition. I can see no reason to suppose that during his lifetime a division even of status was intended. After all, although such a severance
is a familiar enough legal conception in the Courts, the necessity for partition first by status and then by metes and bounds does not very commonly
arise in practice. Nor, again if such was the intention, are the parties likely to have nullified its main legal effect by the addition of Clause 8
Accordingly, I cannot escape the conclusion that what they wanted was to remain joint until after Muthu Odayar''s death, while settling he w the
property should then be divided. I have myself no difficulty in construing Ex. A as an expression of such an intention. It has been asked why, if no
immediate division was intended, the parties should have been at pains to declare in Clause 8 that ""the family shall be treated as (or deemed to be)
an ordinary undivided Hindu family subject to the law of survivorship"" and stress has been laid on the word ""treated"" or ""deemed"" as indicating a
consciousness that the family was not in fact joint. No doubt that the phrase ""deemed to be"" is commonly used in Statutes to extend the application
of a provision of law to a class not otherwise amenable to it. But as the learned Advocate-General observes, one cannot apply to a mofussil
document rules of construction that would be appropriate in the case of a Statute. I think the reasonable view to take is that the draftsman, having
in mind such decisions as Appovier''s case 11 M.I.A. 75 : 8 W.R. 1 : 2 Sar. 218 : 1 Suther 657 and realizing that Clause 1 might imperil the joint
status (a fear, as the sequel shows, not unfounded) inserted Clause 8 as a precautionary measure. A case which bears some resemblance to this
one was decided by Krishnan and Ramesam, JJ. in Venkatachala Pillai v. Arutha Vathachi 72 Ind. Cas. 548 : 17 L.W. 755 : (1923) M.W.N. 225
: AIR 1923 Mad. 568. The second of three brothers was adopted out of the family, the other two remaining joint. All three entered into an
agreement to put their property together and live. as members of a joint family, and when a division should take place to divide into three equal
shares--subject to the operation of the law of survivorship. It fell to be decided whether the agreement had occasioned a severance of a status, and
there, as here, it was argued that the deed ""as a matter of legal consequence, whatever the parties might have intended, resulted in the severance of
coparcenary""; but the learned Judges observe that the document recited that no party to it was to assert that any portion of the property belonged
to him separately or exclusively, and provided for future born children to be made sharers. It was further suggested that the fixing of the shares at
one-third each was an indication that a division was intended, and Balkrishen Das v. Ram Narain Sahu 30 C. 738 : 15 Bom. L.R. 461 : 30 I.A.
139 : 7 C.W.N. 578 : 8 Sar. 489 was cited in support of this contention. The answer to this, equally applicable I think to the present case, was
that the definition of shares amounted to nothing more than a statement as to what each person would be entitled to in case of a division if no
brother were born.
I should be prepared to he ld then that the document is not ambiguous of the intention to remain joint, and is not ambiguously expressed. But
conceding that there may be ambiguity, it is permissible to look at the subsequent conduct of the parties to ascertain if it favours the one view or the
other.
A number of documents throw light upon this question. The earliest is a petition (Ex. D) filed in 1904 by the 1st defendant asking to be
appointed to the Negapatam Devastanam Committee in the vacancy caused by the death of Sivavadivelu, whom he describes as his undivided
brother. Sivavadivelu was, of course, his natural brother though his cousin brother by adoption. Sivaswami Odayar, who was very largely
conducting the family affairs, died in 1909 and his death gave occasion for a number of applications in pending suits. Exhibit KK is a written
statement filed by Singaravelu Odayar in a suit on a promissory-note in which he was impleaded after Sivaswami Odayar''s death. The terms of
this statement throughout are only compatible with the existence of an undivided status. The present 1st defendant and the 3rd and 4th defendants
adopted this statement in Exs. KK-1 and KK 2. The C series of documents again, are compatible only with joint family membership, as for
instance Ex, C-4, where the members of family of Sivaswami, claming to be his co-parceners, asked to be brought on for purposes of executing
the decree. The widow would, of course, have been the proper representative had the deceased man not been joint with the other family members.
Exhibit PP is a promissory note executed by Singaravelu Odayar, in 1911 in renewal of a debt contracted by Sivaswami Odayar, whom he
describes as his undivided brother. Exhibit CC is an application by Singaravelu Odayar to the Receiver of the Palace Estate at Tanjore to transfer
to his undivided younger brother Gopalaswami Odayar (1st defendant) the registry standing in his name of certain lands. The record shows that
reference was made to the head karnam who reported that the family was an undivided one. A statement to the same effect is contained in a letter,
Ex. CC-1 which the 1st defendant wrote to the Receiver in the same connection. In 1917, a few days before his death, Singaravelu Odayar on
behalf of himself, his adopted son and all the members of Ayyathori''s branch sent the remainder of the family a notice Ex. N that they should be
held thenceforward to be divided. The notice says, ""Although yourselves and ourselves have been till now, living as members of an undivided
family, as we think that we should become divided from you, we have become divided from now. You have no right to the properties belonging to
our share. In the same way, we have no right to the properties belonging to your share. We strictly inform you that henceforward there shall be
between us only relationship by blood, but no interest with regard to property.
Whatever the circumstances in which this notice was issued it contains no allusion to the partition deed of 1895 and expressing as it does an
unequivocal intention to become divided in status, it cannot easily be reconciled with the theory that an earlier division of this kind had already
taken place. In fact, no further action seems to have been taken and this notice remained as much a dead letter as the suit partition deed itself, I
have left to the last the only document which can in any manner be construed as suggesting a divided status In 1899 Sivaswami Odayar offered
himself as a candidate at a Municipal election in Kumbakonam and Ex. VI is a protect addressed by a number of voters to the Chairman, objecting
to his candidature on the ground that his brother Sivavadivelu was already a Municipal Councillor and that the rules precluded more than one
member of an undivided Hindu family from sitting on the Council. Exhibit VI (a) is Sivaswami Odayar''s reply. His primary argument is that where
in an undivided family the property is sufficient to qualify more than one individual for a seat, the rule referred to had no application. He then goes
on to say that admitting that the rule is capable of the interpretation placed upon it by the petitioners, his family ""might for the purpose of this
objection be legally considered as a divided one under the terms of a registered document entered into among the members thereof dated the 25th
November, 1895."" It seems clear to me from the terms of this letter that Sivaswami Odayar''s own view was that he was undivided from his
brother and that he merely put forward the possible legal effect of the partition deed as a means of gaining his object. If he had indeed believed that
it divided the status, his reply would surely have been in different terms. From a consideration of all the available documentary evidence, therefore,
1 think that no other conclusion is possible but that those members of the family whose views are ascertainable from these documents entertained
the view that they were still undivided in status. My conclusion then is that the family members intended to remain joint until Muthu Odayar''s death,
while entering into this agreement as to what their shares should be thereafter. I have already expressed the view that an agreement of this nature
does not necessarily disrupt the status. Nor has any authority been shown