(1.) THIS appeal is by the 1st defendant in a suit in partition. The plaintiffs claim themselves and defendants 1 to 7 to constitute a tarwad to which the suit properties belong. The 1st defendant denied the existence of such a tarwad asserting the plaintiffs' tavazhi to have separated from his tavazhi when their ancestress Meenakshikutty Amma demanded partition on January 1, 1940, and claimed the plaint properties to belong to him or to his tavazhi. The Munsiff found the parties to constitute a tarwad and the plaint properties to belong to that tarwad and therefore decreed the suit. The subordinate Judge on appeal, has affirmed him. Hence this second appeal.
(2.) EXT. B11, the notice issued by Meenakshikutty Amma and her mother to the karanavan on January 1, 1940, is an unequivocal demand for partition. The plaintiffs who are their descendants, were minors or unborn then. The view of the courts below is "that the persons who sent EXT. B-11 abandoned their idea of getting a partition and as such EXT. B-11 cannot be considered to have effected a division in status. " This is insupportable. In law, a unilateral declaration of intention to separate communicated to the other members effects a status of division between the member so demanding and the others. The moment the communication of such intention takes place, the status of division becomes an accomplished fact. No question of pursuance or abandonment of the idea of getting a partition" is material or relevant thereafter. It follows that on January i,1940, the tavazhi of the plaintiffs became divided off from the other members of the tarwad who constituted the tavazhi or the 1st defendant though nothing further took place in pursuance of the notice aforesaid.
Once a tarwad or joint family has become divided the presumption is that it continues to be such unless a reunion is clearly made out. As observed by the Supreme Court in Bhagwan Dayal v. Mst. Reoti Devi A. I. R. 1962 S. C. 287: "it is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status of members of a joint Hindu family. Such an agreement need not be express, but may be implied from the conduct of the parties alleged to have reunited. But the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. " Counsel for appellant contends that as there were minor members in the plaintiff's tavazhi a reunion between the two tavazhi was impossible in law. No doubt, in Mulla's Hindu law (13th Edn. Para. 344), it has been observed: "since a. minor is not competent to contract, it follows, that an agreement to reunite cannot be made by or on behalf of a minor" Balabux Ladhuram v. Rukhmabai 30 I. A. 130,136 = 30 Cal. 725 cited as authority to the proposition. It surprises why a guardian cannot make an agreement on behalf of the minor. I am afraid the cited precedent of the Privy Council has not laid such a proposition. As every judicial dictum has to be understood Secundum subjectam materiam, the facts of the case that was before the Privy Council may be referred to here. Three brothers, Girdhari Lall, Kunyaram and Ladhuram, formed an undivided Hindu family. At about 1869, Kunyaram separated from his brothers. There was no direct evidence of any separation between Girdhari Lall and Ladhuram. About the time of separation of Kunyaram, Ladhuram sent his wife and infant son to reside elsewhere and a few months afterwards he joined them there, and they ail went on a pilgrimage to Prayag, where he died in 1873. Thereupon Girdhari Lall brought Ladhuram's widow and minor son, then 13 or 14 years of age, to his residence where they lived with him until his death in 1882. The questions before the Judicial Committee were whether there was a division between girdhari Lall and Ladhuram when Kunyaram separated from the family, and secondly if they were separated was there a reunion thereafter. Their Lordships held". . . there is no presumption, when one coparcener separates from the others, that the latter remain united. In many cases it may be necessary, in order to ascertain the share of the outgoing member, to fix the shares which the other coparceners are or would be entitled to, and in this sense the separation of one is said to be a virtual separation of all. And their Lordships think that an agreement amongst the remaining members of a joint family to remain united or to reunite must be proved like any other fact" and on the question of reunion their Lordships observed: "a reunion in estate properly so called can only take place between persons who were parties to the original partition. This appears to be the meaning placed on the well-known text of Vrihaspati (Mitakshara, "2. Effects, which had been divided and which are again mixed together, are termed reunited. He, to whom such appertain, is a reunited parcener. 3. That cannot take place with any person indifferently; but only with a father, a brother, or a paternal uncle; as Vrihaspati declares: "he, who, being once separated dwells again through affection with his father, brother, or paternal uncle, is termed reunited. " ch. 2, S. 9): 'he who being once separated dwells again through affection with his father, brother or paternal uncle is termed reunited. '. It is difficult, also, to see how an agreement for that purpose could have been made by or on behalf of the appellant during his minority. " Obviously, their Lordships did not lay down a general proposition but only said a reunion could not have been in the case of the appellant before them, who was the son of Ladhuram. Their Lordships were not adverting to minor's incapacity to contract but observing that a person who was not a "party to the original partition" cannot make a reunion. The partition was "between all three brothers. " The appellant was not a party to it; only his father was. So neither the appellant, nor anybody on his behalf during his minority could have made a reunion; and that alone is, in my opinion, what their lordships said in the passage quoted above. What was difficult for their Lordships to see could not have been "how an agreement for the purpose (of reunion) could have been made by. . . the appellant during bis minority"; for it was only on March 4,1903, that the Judicial Committee ruled in Mohori bibee v. Dhurmodas Ghose 30 I. A. 114 that an agreement by a minor is null and void and Lord Davey who delivered the judgment in the instant case and two other Lords who heard the case were parties to that decision. The hearing of the instant case began on March 18 within a fortnight of that decision when it must have been quite fresh in their memory. So, what their Lordships felt difficult to see could only have been "how an agreement for the purpose (of reunion) could have been made by the appellant or (by any one) on behalf of the appellant during his minority. " the two prior sentences in the judgment justify that inference and that alone. To say that their Lordships meant they never said so anywhere in the judgment "since a minor is not competent to contract, an agreement. . . cannot be made. . . on behalf of a minor" is to attribute to their Lordships ignorance of the elementary principle that in the case of incompetent persons, like minors, their guardian can make an agreement on their behalf. No doubt the agreement contracted by a guardian to bind the minor must be to his benefit, but that is a matter affecting not the competency of the guardian to act but only the quality of the agreement that he contracts. I am of opinion therefore that the above-quoted passage in Mulla's Hindu Law is not correct and the citation of 30 I. A. 130 as an authority thereto is not warranted. Probably it may be, as Derrett has indicated in his Introduction to Modern Hindu Law, para 85, that a guardian cannot reunite a separated minor with himself, because it cannot be predicated whether the reunion would be a benefit to the minor, the risk of loss by births in the reunited family being as great as the chance of gain by deaths therein. But then such speculation is equally in partition, and yet it is clear law that a guardian or a next friend can demand a partition on behalf of a minor See Derrett para 83 ).
In Rusi Mendli v. Sundar Mendli 37 Cal. 703, Brett and sharfuddin JJ. had observed: "in the case of Balabux v. Rukhmabai 30 I. A. 130 30 cal. 725 the Privy Council has expressed the opinion that an agreement to reunite cannot be made on behalf of a person during his minority;so that, in the present instance, the mere fact that the two minor brothers lived with their elder brother would not, in itself, be sufficient to indicate an intention or agreement to reunite. " With respect I agree to the dictum in the letter part of this citation; but I am not able to appreciate how it is derived from the former part that cites the Privy Council. The citation from Balabux Rukhmabai 30 I. A. 130,136 = 30 Cal. 725 I am afraid, is a bit misleading in that it cites as a general proposition what the Privy Council said in the particular circumstances of the case at hand, without noticing the reason given by the privy Council therefor. Perhaps it is this reading of the Privy Council dictum that might have led to the erroneous observation in Mulla's Hindu Law, and probably also to the observation in the last clause of the dictum in Kurapati radhakrishna v. Kurapati Satyanarayana AIR. 1949 Mad. 173: "the withdrawal of the unilateral act which had already resulted in a division in status cannot amount to an agreement to re-unite, and if there are minors even this agreement is impossible. " The former part of this dictum I follow here, but the latter part (for which their Lordships have not given any reason) I dissent respectfully. Mayne, in his Hindu Law and Usage, has, referring to the aforesaid dictum of the Judicial Committee, observed (Vide para 468 at page 570 of the 11th Edition of the text) thus: "it would seem from an observation of the Privy council in Balabux v. Rukhmabai 301. A. 130,136 30 Cal. 725 that no agreement for a reunion on behalf of a separated minor coparcener could be made by his father or his mother as his guardian. But it must be remembered that as it is open to the father or mother as his guardian to effect a separation on behalf of the minor coparcener, it would be equally open to the father or mother as his guardian to agree to a reunion on behalf of the minor". At the risk of repetition, I am constrained to observe that the Privy Council has not said that a father could not agree to a reunion on behalf of his minor son. In the facts of the case before the Privy Council, the reunion set up was after the minor's father was dead, but of course the mother was there. I am afraid this learned author also missed the reason of the observation by the Privy Council which they had expressed clearly in the two sentences immediately preceding it. However the author's own observation in the latter part of the above quote seems to indicate the correct law on the matter.
(3.) IN Bhagirathibhai v. Manohar AIR 1951 Nag. 164 Bose C. J. and Hidayatullah, T. took occasion to observe: "reliance was also placed on the conduct of the father and mother after the decree. Both of them state that no steps were taken to implement the partition by, for exatnble dividing the properties and state that to all intents and purposes the family continued joint. But we do not think that is relevant, because if the decree severed the status then there could be no reunion for the simple reason that the minor could not consent. Unlike severance of status, which can be affected unilaterally, reunion can only be with consent. . . And as a minor cannot give consent, and as no one else is said to have done so on his behalf, the argument regarding reunion goes. " The factus were thus: IN a prior suit by the father against the mother and the minor son (aged 2 years) the compromise decree was that "each owns and has one-third share in the whole property separately. " After that decree the properties came to be sold in execution of money decrees against the father alone. The son after attaining majority, sued to avoid the sales and recover his share of the properties. Their Lordships observed that the facts that the properties were not divided among them in metes and bounds and that they all lived together would not prove a reunion annulling the status of division they had attained through the compromise decree, as nobody was said to have agreed for a reunion on behalf of the minor who could not himself give a consent thereto. The last portion of the above quote shows that if a person competent to give consent on behalf of the minor, e. g. a legal guardian of the minor, had expressed consent to a reunion a lawful reunion could have happened. I would respectfully follow the example of this precedent and overrule the contention that as long as there is a minor in the divided branch, a reunion is impossible with it. (I would have said that for a reunion of divided branches of a tarwad the consent of the heads of the branches as their representatives would suffice but for the decision in 1963 KLT 61 that over-ruled 1662 KLT 99 ).
Coming to the facts of the case: The evidence is that after making a demand for partition, as per Ext. B-11, on January 11940, the matter had not been pursued between the parties and no division of properties took place. In 1945 all the parties joined together to execute Ext. A-3 which is an alienation of their common property to a stranger expressing therein that the alienation was for meeting their tarwad necessities 17 items of common property were then under a mortgage to that vendee Some of the properties were assigned to him under Ext. A-3 in discharge of the mortgage debt and he in turn surrendered back the rest of the properties free of the mortgage as per Ext. B-4 of even date. The release Ext. B-4 is taken in the name of the 1st defendant (the present appellant) alone, describing him as karanavan of the tavazhi. Ext. A-4 is another sale deed dated 12th May, 1945, in which all the parties had joined expressing it to be for tarwad necessities. The 1st defendant examined as dw. 1 had to admit amidst prevarications, thus: "the day the sale was made to Ramakrishnan he surrendered some properties to the tavazhi-tarwad as per a deed of release. That release is Ext. B-4. As per Ext. B-4 9 items of properties were surrendered. Those properties are plaint items 1 to 9. . . . Ext. B-4 has been executed in the capacity of Karanavan of the tavazhi-tarwad. I took Ext. B-4 in the capacity of Kara-navan of the tavazhitarwad. All the 9 items in Ext. B-4 belong to the tavazhi-tarwad. At the time of sale to Ramakrishnan and of taking release, there was no partition in the tavazhi-tarwad. No partition took place even thereafter. The tavazhi of grandmother Meenakshi Amma sold some properties to one Muthu. That sale was also executed in the capacity of Karanavan of the tavazhi-tarwad. That was in May 1945. That sale deed is Ext. A41 It it obvious that at the time of the above-said 'transactions, viz. , Exts. A-3, B-4 and A-4 in 1945, the plaintiffs and the defendants were conducting themselves as one tarwad of which the 1st defendant was the karanavan and manager. That shows clearly that in or before the year 1945, the parties constituted a tarwad. It is then clear that the status of division attained by Ext. B-11 in 1940 has been abandoned by the parties, who reunited themselves to constitute a tarwad or, as the 1st defendant has named it, a tavazhitarwad which means a sub-tarwad. The contention that the plaintiffs are separate from the 1st defendant at the time of this suit has therefore to be and been rightly over-ruled by the Courts below.;