(1) The question of law on the answer to which the learned Judges differed has been formulated by Satyanarayana Rao J. , in these terms :

"whether a member of a Mitaksbara Hindu joint family or a member of a tarwad governed by the Marumakattayam law can become divided in status by issuing notice of his intention to separate to the manager of his joint family or the karnavan of the tarwad without issuing notice to the other members. " having regard to the form of the question, it was argued that it raised two distinct issues: (a) Should notice be given to the other members of the family of the intention of an individual member to separate himself from the family in order to bring about a division in status between him and the other members (b) If notice of such an intention has to be given to the other members, is a communication to each and every one of them necessary or is notice to the head of the family sufficient to effect a severance

These questions have to be decided by the application of the rules of Hindu law derivable from the writings of the commentators and Nibhandakars and the decisions of the Judicial Committee. I would have had little difficulty in answering the question propounded if I were to be guided solely by the ancient Hindu jurists without being embarrassed by judicial pronouncements which profess merely to interpret or declare the law as laid down by them. I do not wish to cover a wider field than is absolutely necessary for the decision of this case especially as the matter now under consideration has received the particular attention of the remarkably able and acute lawyers who formulated the doctrine now in question.

(2) Under the Hindu law "partition" may mean and comprise both a division of right,. e, a severance in the joint status, and a division of property. We are dealing in this case only with a division of right, or a severance of the joint status. This may result from an agreement between the members of the joint family or from any other act or conduct which, in law, would create a severance. An agreement is not the only mode by which a division in status can be brought about, the contrary View held by some of the early decisions being, no longer law:

"a definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severally may amount to separation"--Suraj Narain v. Iqbal Narain. 35 All. 80 : (40. A. 40 P. C.). Is the giving of a notice to the manager or to all the other members of the family of this intention to separate an integral part of the rule according to the tests of Hindu law If not is any and if so, what formality has to be observed by a member who desires to separate by a declaration of his intention The answer will be clear if we examine the jural basis of this doctrine as expounded by the early writers on Hindu law.

(3) I may preface my examination of the texts by observing that the ancient law givers far from encouraging the continuance of the joint family, recommended a partition mainly on religious grounds. . (VERNACULAR MATTER OMMITED). . "let those who desire an increase of merit by the separate performance of worship for the gods and the. manes, divide. " see also Manu, chap. IX -. The word "dharma" in Sanskrit which I have translated as "merit" has reference to religious acts such as the performance of paneha mahayajnas, the sacra of the Romans. If the family is joint, worship of the gods, Vaisvadeva, Shradhas and the feeding of guests are all single for the whole family and the spiritual benefits derived therefrom are shared by all the members while if they separate, each performs these acts separately and acquires religious merit for himself in a much larger measure. I am not sure whether Seshagiri Aiyar J. had any textual authority in view when he observed in Soundararajan v. Arunachalam, 39 Mad. 159 at p. 186 : (A.. R

. (3) 1916 mad, 117 (0 F. B.), as follows:

"it is enough to say that the essential characteristics of Hindu law as understood by the writers of the Benares school are survivorship and representation. So far as a cursory examination of these treatises goes the idea of survivorship is to entire consonance with the genius of Hindu law as it is administered in South India. "

Once and for all, Vijnaneswara emphathically asserted and established the sons right to sepa- rate from the father even during his lifetime. Even in the clays of gautama 15 centuries before Vijnaneswara the right to partition received a fillip from the religious sentiments above described. Partition is, therefore, not looked upon with disfavour by the early treatises on Hindu law.

(4) It is best to start the examination of the texts with Vijnaneswara, the most celebrated of the commentators, who belonged to the nth century. He takes the following sloka from Yajnavalkya Smrithi for comment :. . (VERNACULAR MATTER OMMITED). . "in land, corrody (annuity etc.), or wealth received from the grandfather, the ownership of the father and the son is only equal":

(5) The relevant portion of the commentary of Vijnaneswara is as follows :. . (VERNACULAR MATTER OMMITED). .

"in property obtained by a paternal grand-father through gifts, conquest etc. , the ownership of both the father and the son is well known to the world and therefore there is a partition (of this property). Because there is equal right, therefore the partition is not merely at the desire of the father nor does the father get a double share. . . . . And thus though the mother is having her menstrual courses (has not lost the capacity to bear children) and the father has attachment (to wealth) and does not desire a partition, yet by the will (or desire) of the son a partition of the grand-fathers wealth does take place. "

I have given a literal translation of the test even though it appears a little uncouth in its English garb. The astonishing and often perplexing brevity of these ancient writers renders necessary a word of explanation. In the passage which I have omitted with a view to economise space and which I have indicated by asterisks, a text of Manu to the effect that while the parents live, though they are old and infirm, the son has no control over the parental estate is referred to. Another text of Narada allows the father a double share at a partition. Yet another text of Gautama allows a partition only when the father desires partition and the mother is past the child bearing age. Vijnaneswara distinguishes these pronouncements and explains them away as applicable to a partition of the effects acquired by the father himself and not to a partition of the ancestral or pater- nal grand-fathers property. With regard to ancestral property he rules that there can be a partition at the will or desire of the son (putrechaya) because of the equal right (Sadrisasamya) of the father and son. You have here got the idea of individual volition (Ichcha) bringing about a severance in a joint family.

(6) Dealing with the other texts in their chronological order, the Saraswati vilasa, said to have been complied in the early years of the 16th century, has been repeatedly recognised by this Court and the Judicial Committee as of special authority in South India. It is a work written in prose and not in verse as supposed by Seshagiri Aiyar J. The discussion of this topic starts with plaeitum 22 and continues till placitum 30. . . (VERNACULAR MATTER OMMITED). . (22) Bharuchi says that division means the separation (keeping apart) of either wealth or religious duty. (23) Vijnanayogi, however, says that division (partition) is the adjustment of the ownership of several persons in the common wealth by assigning portions in several ownership. (24) Bharuchi does not accept this, as it is absent in a division of dharma (religious duty). (25) By division of "dharma" is meant a division of dharma alone, that is to say, separate performance of Vaisvadeva, the five great sacrifices and ancestral rites. (26) Therefore in the case of the extremely indigent owing to the absence of wealth (to be divided) division of Dharma (religious duty) may be made. On a division of Dharma (religious duty) alone can be made among those who desire an increase of (religious) merit in view of the saying of Gautama by partition (religious) merit increases. (27) Therefore Vishnu says or let him divide religious duties alone, (the expression) if absolutely indigent being supplied (or understood). (28) From this it is known that without any speech (or explanation) even by means of a determination (or resolution) only, partition is effected, just an appointed daughter is constituted by mere intention without speech. (29) In the case of those who have wealth, partition of religious duty follows only upon the partition of wealth for, religious duties such as Vaisvadeva, etc. , have to be performed according to the (following) text "divided brothers may perform but not the undivided ones under any circumstances"

. (30) therefore in the case of the indigent, the separate performance of religious duties with or without the consent of others, constitutes a division of religious duties, but in the case of the rich, (there takes place a division of property.

(7) According to the Saraswati Vilasa, a division in status is brought about by "sankalpa" alone without "paribhasha". "sankalpa" I have translated as "determination, resolution, intention" and "paribhasha" as "speech, explanation". The reference to the "putrika" in plaeitum 28 throws a flood of light on the meaning of the author. The conception of "putrika" or "appointed daughter" is now obsolete. It will be recalled by those familiar with the Smrithis that the marriage of a brotherless maiden was not recommended by the smrithikars, particularly Manu and Yajnavalkya, for fear that the father of the girl might, without even so much as an express stipulation at the time of the marriage, but merely by his own unilateral intention and mental resolution, treat the girl as his own son or annex the first born son of the girl to his own family, he himself being sonless. Either the girl took the place of a son to her own father or her son became the son of his maternal grandfather and his own father lost the exclusive benefit of the spiritual ministrations he and his ancestors would normally be entitled to. Hence the chorus of disapprobation of a brotherless maiden, whos hand would, for that very reason, be competed for eagerly in modern days. The point relevant to the present discussion is that the "putrika" may be constituted by a mere unilateral intention on the part of the father. This silent speechless annexation of the putrika and the putrikaputra by the unilateral intention of the father is referred to by the author of Saraswati Vilasa as a parallel doctrine when he states that mere "sankalpa" or "determination" or "intention" is enough to bring about a division in status.

(8) The next treatise that has to be considered in order of date is the viramitrodaya of Mitra Misra written somewhere in the first half of the 17th century. It is one of the most exhaustive of the Nibhandas and closely follows the Mitakshara. Vijnaneswara dealt with a division at the desire of the son. Mitra Misra extends the privilege to all coparceners including grandsons. The relevant portions of the text are these :. . (VERNACULAR MATTER OMMITED). .

(9) In the Manus text the term "assembled together" merely recites (but does not insist on) the assemblage (of coparceners) which may take place like the plurality in the expression "brothers". Otherwise, partition could not take place at the desire of one coparcener or where there are two brothers only. The term "equally" however is restrictive. We shall consider this subject later. . . (VERNACULAR MATTER OMMITED). .

"here too there is no distinction between a partition during the lifetime of the father or after his death and partition at the desire of the sons may take place or even by the desire (or at the will) of a single (coparcener). In support of this view is the test of Katyayana dealing with partition. The wealth of those who have not attained (the age of) discretion should not be disbursed (spent) but deposited with relatives and friends. Likewise the wealth of those who are abroad (in a distant place). Otherwise, if partition could not take place without their consent, the direction for deposit of their wealth with relatives and friends would be inappropriate. "

In plaeitum 23 the author says that partition or division may take place at the will or desire even of a single coparcener (Ekechhaya). In the next plasitum he extends to a grandson and great grandson the right which he conceded to the son.

(10) Lastly we come to the Vyavahara Mayukha of Nilakantabhatta written in the begining of the 17th century. With characteristic terseness and lucidity, he starts the law as follows :. . (VERNACULAR MATTER OMMITED). .

"even in the absence of any common (joint family) property severance does indeed result by the mere declaration i am separate from thee" because severance is a particular state (or condition) of the mind and the declaration is merely a manifestation of this mental state (or condition)" emphasis is laid on the "budhivisesha" (particular state or condition of the mind) as the decisive factor in producing a severance in status and the declaration is stated to be merely as "abhivyanjika" or manifestation which might vary according to circumstances. "

(11) Now an examination of the texts of Hindu law leads me to the conclusion that the severance of the joint status so far as the separating member is concerned is a matter of his individual decision, the desire on his part to sever himself from the joint family and enjoy his hitherto undivided share separately from the others. I may say that the tests do not countenance the idea that even if the intention to be divided is kept locked up as a secret in the bosom of the dividing member, he can claim that there has been a severance. To have that effect, some outward manifestation, indication, or publication of his intention either by word of mouth or by conduct is requisite. If, as stated in the texts and accepted by decisions of authority, an intention to divide is inferable from conduct, there is no question of formal notice being given of the intention of the separating member to sever himself from the other members of the family. It could not be said in such a case that the severance in status has taken place at a particular point of time or by a formal communication to the other members of the family. In Jaynarain Giri v. Girischunder Myti, 4 Cal. 434 : (

5. a. 228 P. C.), the Privy Council regarded the conduct of one of the two members of a joint family

"when he left the joint residence and withdrew himself from commensality as indicating a fixed determination henceforward to live separate from his cousin" and treated the fact of his borrowing money for his separate maintenance, as well as his making a will, as indicating, at all events, that he himself considered that a separation had taken place. "

The conclusion was based on the inference of intention derivable from the acts and declarations of the member wbo, it was alleged, had separated himself, and not from the conduct or attitude of any other party. In Ram Per-shad Singh v. Lakhpati Koer, 30 Cal. 231 : (30. A. 1 P. C.), the Judicial Committee stated:"but here again the conduct of the parties must be looked at, in order to arrive at what constitutes the true test of partition of property according to Hindu law, namely, the intention of the members of the family to become separate owners. "

In the case of a division in status brought about by conduct, all that can be said is that there is a publication or manifestation of an intention to divide and that is all that the texts of Hindu law require.

(12) It must, however, be confessed that the decided cases present greater difficulty than the texts. As early as 1865 the Calcutta High Court in the case of bulakeelal v. ML Indurputtee Thowar, 3 W. R. 41, held as follows :

"and any act or declaration showing an unequivocal intention on the part of a shareholder to hold or enjoy his own share separately and to renounce all rights upon the shares of his coparceners constitutes a complete severance or partition,"

Again in the case of ML Vatolcoer v. Rowshum Singh, 8 W. R. 82, the same court expressed itself in these terms on the question of separation :"we find that Sohun did publicly and unequivocally by petition presented in Court declare his intention to become from that date divided in estate. Such an intention amounts to a valid separation though not immediately perfected by an actual partition on the estate by metes and bounds. The acts and declarations of Sohun Singh showing an unmistakable intention to hold and enjoy his own estate separately, and to renounce all rights upon the shares of his coparceners, constitute, in our judgment, a complete severance or partition. "

This passage from the judgment of the Calcutta High Court has been accepted by the Judicial Committee in Mt. Girja, Bai v. Sadashiv Dhundiraj, 43 cal. 1031 at 1051: (A. . r

. (3) 1916 P. C. 104), as laying down the law correctly. There is no reference here or in the earlier case from the Weekly Reporter to the necessity of a com. munication of the intention of the separating coparcener to the other coparceners if a severance in status is to be brought about. As late as 1911, this Court laid down after considerable argument and deliberation, that the preliminary decree in a partition suit effected a severance in status: thandayuthapani v. Raghunath, 35 Mad. 239 [LQ/MadHC/1911/69] : (

10. C. 660). Then came the decision of the Judicial Committee in Surajnarain v. Iqbal Narain, 35 ALL. 80: (40. A. 40 P. C.) with the following categorical statement of the legal position :"a definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severally may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed. . . . Suvaj Narain alleged that he separated a few months later; there is, however, no writing in support of his allegation, nothing to show that at that time he gave expression to an unambiguous intention on his part to cut himself off from the joint undivided family. "

The necessity for a communication of the intention of a member to separate himself to the other members of the family is not adverted to by their lordships, either because they did not consider it an essential component of the rule or because it was not necessary in the circumstances of the case to deal with that aspect of the question.

(13) Soon after the decision of the Privy Council, a Fall Bench of this Court had to consider its scope and effect. In Soundarajan v. Arunachalam Chettiar, 39 mad. 159 : (A.. R

. (3) 1916 Mad. 1170 [LQ/MadHC/1915/145] F. B.), Sir John Wallis C. J. held that the texts to which I have referred in this judgment did not support the doctrine of partition by unilateral act. Seshagiri Aiyar J. went one step farther and held that the weight of textual authority was against the contention that a unilateral declaration by one member of a joint family of his intention to become divided created a severance. Sadasiva Aiyar J. , however, held that the doctrine propounded by the Judicial Committee in Surajnarain v. Iqbal Narain, 35 ALL. 80 : (40. A. 40 P. C.), was by no means a novel one, though the Madras High court had all along dissented from the Calcutta High Court and consistently held that a mere declaration by one member was ineffective to bring about a severance in status. All the three learned Judges, however, held that the decision of the Privy Council in Suraj Narain v. Iqbal Narain, 35 ALL 80 : (40. A. 40 P. C.) left them no option but to hold that a member of a joint Hindu family became separated from the other members by the fact of suing them for partition. It may be observed that no question of notice to the other members of the intention of one member to separate was raised in the reference to the full Bench. Sadasiva Aiyar J. , however, stated that the phrase "clearly expressed" in the decision of the Privy Council meant "clearly expressed to the definite knowledge of the other coparceners. " In answering the reference the learned Judge stated his conclusion in these terms :

"a member of a joint Hindu family becomes separated from the other members by the fact of suing them for partition and by the unequivocal declaration mentioned in the plaint in that suit when such unequivocal declaration baa been definitely expressed to the other coparcener of coparceners through the Court or otherwise. "

I have now to consider the authoritative pronouncement of the Judicial committee on this topic in Mt. Girja Bai v. Sadashiv Dhundiraj, 43 Cal. 1031; (A.. R

. (3) 1916 P. C. 104) which, the later decisions both of the Privy Council and of the High Courts in India, have purported to follow and apply. The question in that case was whether Harihar, the original plaintiff in the action, had become divided from his nephews Dhundiraj and Nilkant and their sons who were defendants 1 to

4. Dhundiraj defendant 1 was the de facto manager of the joint family after the death of his father Atmaram in 189

9. On 1-10-1908 harihar gave a registered notice to Dhundiraj that he wanted to have a partition of his one-third share of the joint family property. On 18-10-1908 Dhundiraj replied asking Harihar not to have the property partitioned but agreeing to have a division if Harihar insisted upon it. On 21-10-1908 Harihar brought a suit for partition against Dhundiraj and others. The defendants filed a written statement admitting the claims and agreeing to have a division. On 17-6-1909 Harihar died before any decree could be passed in the suit and his widow Girja Bai applied as his heir at law to continue the suit. The defendants opposed her application on the ground that Harihars rights have devolved upon them by survivorship and his widow had no right to proceed with the suit. This contention was upheld by the Judicial Commissioners of Nagpur, but rejected by the Privy Council. After an examination of the relevant texts of Hindu law, their lordships refer to the well marked distinction that exists in Hindu law between a severance in status so far as the separating member is concerned and a de facto division into specific shares of the property held until then jointly and laid down the law in these terms :"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. Once the decision has been unequivocally expressed and clearly intimated to his co-sharers, his right to obtain and possess the share to which he admittedly has a title is unimpeachable; neither the co-sharers can question it nor can the court examine his conscience to find out whether his reasons for separation were well founded or sufficient; the Court has simply to give effect to his right to have his share allocated separately from the others. "

It is difficult to say that their Lordships of the Judicial Committee who purported to found themselves on the texts of Hindu law, laid it down as an integral part or essential condition of the rule permitting severance by unilateral declaration of intention to become divided, that there should have been a communication of that declaration to the other members of the family. The expression "once" occurring in the passage above quoted is not to be understood as meaning "if and not otherwise" or "unless and until" or "then and not till then". It is not ag if in this passage their Lordships were particularly considering the claim of the surviving coparceners by the right of survivorship and repelling it because they had been clearly intimated about the unequivocal declaration or intention by harihar to divide himself. Their Lordships were merely emphasising the principle that it is the inherent right of every coparcener to demand a partition and if he expresses his intention to do so, neither the other members nor the Courts have any right to enquire into his reasons or motives but have merely be give effect to his right. That their Lordships did not intend to lay down that the issue of a notice to the other coparceners was an essential part of the doctrine of severance by unilateral declaration appears from what they stated at p. 1050 of the report:"the intention to separate may be evidenced in different ways, either by explicit declaration or by conduct. If it is an inference derivable from conduct, it will be for the Court to determine whether it was unequivocal and explicit. "

The position is made clearer still by the concluding portion of the judgment at p. 1051 of the report :"in the present case, Harihar, the husband of the appellant, unequivocally and unmistakably manifested his intention to separate himself from the defendants, and to hold, possess, and enjoy his unquestioned interest separately from them. In their Lordships judgment, this was sufficient, under the Hindu law, to constitute a separation and to divide him in estate from his coparceners,"

The later decisions of the Privy Council do not call for any detailed examination since they purport merely to reiterate the statement of the law contained in the decision above cited. In Kawal Nain v. Budh Singh, 39 ALL. 496 : (A.. R

. (4) 1917 P. C. 39) Viscount Haldane referred to the judgment of the Judicial committee in Girja Bai v. Sadashiv Dhundiraj, 43 Cal. 1031: (A.. R

. (3) 1916 P. C. 104) as laying down that the commencement of a suit for partition effected a separation from the joint family and that it was immaterial in such a case whether the co-sharers assented. He added that"a decree may he necessary for working out the result of the severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether he obtains a consequential judgment or not. "

The severance in status is here stated to be brought about by the assertion of the right to separate and there is no qualification that the other co-sharers should be notified regarding the assertion of that right. In Ramalinga Annavi v. Narayana Annavi, 45 Mad. 439 : (A.. R. (9) 1922 P. C. 201), Mr. Amir Ali in delivering the judgment of the Board observed:"an unambiguous and definite intimation of intention on the part of one member of the family to separate himself and to enjoy his share in severally has the effect of creating a division of the interest which, until then, he had held in jointnegs. This intention was clearly intimated to the coparceners when the plaintiff Narayana served on them the notice on 30-7-190

9. That notice effected a separation so far as his foranch of the family was concerned. "

Their Lordships apparently had in mind the facts of the particular case where a notice had beenissued. In Syed Kasam v. Joravar Singh, 50 cal. 84 : (A. . R. (9) 1922 P. C. 353), Viscount Cave, in delivering the judgment of the Judicial committee observed :"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 holders, of his intention to hold 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. "

There is no reference here to the necessity for a communication to the other members of the family. In Balkrishna v. Ramkrishna, 53 ALL. 300 : (A.. R. (18) 1931 P. C. 154), it was held by the Judicial Committee that one of the four brothers by name Lal Man had become separated from his brothers by reason of his conduct and actings. Sir George Lowndes stated the law in these terms :"it is now settled law that a separation may be effected by a clear and unequivocal intimation on the part of one member of a joint Hindu family to his co-sharers of his desire to sever himself from the joint family. This was laid down in Suraj Narain v. Iqbal Narain, 35 All 80 : (40. A. 40 P. C.). The question was further examined in Girja Bai v. Sadashiv Dhundiraj, 43 Cal. 1031 : (A.. R

. (3) 1916 P. C. 104) and the principle was re-affirmed, and the last mentioned case was followed in Kaval Nain v. Budh Singh, 39 All. 496 : (A.. R

. (4) 1917 p. C. 39).

The next decision of the Judicial Committee calling for notice is Babu ramasray Prasad v. Radhika Devi, 43 M. L. W. 172 (P. c.), where Sir john Wallis observed as follows :"it is, however, well settled that a member of a joint family may effect a separation in status by giving a clear and unmistakable intimation by his acts or declarations of a fixed intention to become separate even though he goes on living jointly with the other members of the family and there is no division of property. Balalkrishna v. Ramkrishna, 53 all. 300 : (A.. R. (18) 1931 P. C. 154). "

In all the three cases immediately above cited, a severance in status was inferred merely from the conduct of the parties which of course must have been known to the members of the family. In the case of Bamnarain Sahu v. Mt. Makhna,. L. R. 1939 ALL. 680 : (A. . R. (26) 1939 P. C. 174), their Lordships of the Judicial Committee held that if a coparcener, or if he is under a disability, any person entitled to act for him, demands a separation of his share in a pending suit for partition, there is a severance in status even though no relief is granted by the decree. Sir George Rankin in delivering the judgment of the judicial Committee referred to the previous decisions of the Board in these terms:"the right of a member of a Hindu family who is sui juris to separate himself in estate, and interest by declaring his intention was thus stated by Sir George Lowndes in Balkrishna v. Ramkrishna, 53 All 300 : (A.. R. (18) 1931 P. C. 154). " (Then follows the passage already extracted above from the judgment in Balkrishna v. Ramkrishna, 53 All. 300 : (A.. R. (18) 1931 P. C. 154).)

From the foregoing discussion it will be observed that there is no decision of the privy Council which has gone to the length of holding that where there has been "a definite and unambiguous indication" or "a clear and unequivocal declaration" by one member of his intention to separate, nevertheless, there is no severance in status unless and until notice of such intention or declaration has been communicated to the other members of the family. Nor does the judicial Committee invariably insist upon a communication or notice to the other members of the family of the intention of one member to divide himself from the others. It must, however, be conceded that when they do refer to a notice or communication or intimation of the intention to divide, they refer to an intimation to the other members of the family.

(14) In the case of a severance in status brought about by conduct--and it has been repeatedly recognised by the Privy Council that it can be so brought about--there is no question of a notice or communication of the intention to divide. The tests quoted by me regard the unilateral decision or the individual volition and desire of a member of the joint family as the crucial severing factor, the indication, manifestation, or publication of such intention being merely evidentiary. In other words, notice or communication of an individuals intention to divide, to the other members of the family is neither a condition nor a pre-requisite of the severance in status, but is only of evidentiary value and importance. Partition does not create title in the corparcener or give him a right to his share. It only enables him to obtain what is his own already. Notice of an intention to become divided is not the root of title and is not like a notice to quit which is a condition precedent to the accrual of the right or an integral part of the cause of action itself. The other members of the family have no voice in the matter. They cannot veto the declaration of the member. They cannot resist his determination. If you impose a condition that it is only if all the other members of the family are duly notified of the intention of an individual member to divide, there could be a severance in status so far as he is concerned, you are imposing a clog or fetter on the right of the individual member. You are abrogating pro tanto the "unilaterality" of the doctrine of unilateral declaration. At the same time it can easily be realised that it is of vital interest to the other members of the family to be sure of their position vis--vis the dividing or outgoing member. Therefore it is that the declaration of intention to separate must be clear and unequivocal, expressed in such a form that it would not be open to the separating coparcener afterwards to say that he still continues to be a member of the joint family. It is for this reason that an outward manifestation or clear indication of an intention to divide is also required. Suppose a man registers a document declaring that he is a divided member or publishes a notice to that effect in the newspaper. Is it to be said that he has not become divided in status simply because his coparceners have not been individually notified of his intention The only reasonable rule that can be deduced from the tests and the several decisions of the Judicial Committee is that the declaration of an intention to divide on the part of a member of the family should be clear and unequivocal and should be indicated, manifested or published in such a manner as is appropriate in the circumstances of the case. One method, but not the only method, of such manifestation or publication is by delivering a notice containing a declaration of intention to become divided to the other members of the family.

(15) It may be pointed out that even after the decision of the Privy Council in Suraj Narain v. Iqbal Narain, 35 ALL. 80 : (40. A. 40) the majority of the Full bench in Soundararaja v. Arunachala Chetti, S9 Mad. 159 : (A.. R

. (3) 1916 mad. 1170 [LQ/MadHC/1915/145] F. B.) accepted the doctrine of severance by unilateral declaration with considerable reluctance and hesitation, opposed as it was to the opinion of that eminent jurist Sir V. Bhaahyam Aiyangar and the view taken in several previous decisions of this Court This unreceptivity to what was considered to be a somewhat revolutionary doctrine, is discernible in the hesitancy and extreme caution with which it was continued to be applied in this Court in spite of the lead given by the Judicial Committee. In K. Ayilamma v. M. Venkatasami, 33 M. L. J. 746 : (A.. R. (6) 1919 Mad. 1156), it was laid down by Sir John Wallis and Kumaraswami Sastri J. that if a coparcener does not communicate, during his lifetime his intention to become divided to the other coparcener or coparceners, the mere declaration of his intention, though expressed or manifested, does not affect a severance in statua. In that case the only other coparcener happened to be a minor and their Lordships held that notice of the intention of the major coparcener to become divided should have been given to the mother of the minor, his natural guardian SO as to reach the latter during the lifetime of the major coparcener. In their Lordships view the receipt of the communication of an intention to divide by the other members of the family was essential to create a severance in status. In the case of minor coparceners who had no natural guardians, their Lordships held that "there must be such an intimation as the case admits of". Is the coparcener desiring separation from such a minor to have a guardian ad litem or ad hoc constituted for the minor what is to happen if nobody was willing to accept responsibility for the minor and receive the notice The Court cannot appoint a guardian of the interest of a minor coparcener in a joint Hindu family under the Guardians and Wards Act. Is the major coparcener to forgo the right to become divided in status until the minor becomes a major or is he to be forced to file a suit for partition Why should he suffer because there is no lawful guardian to receive notice on behalf of a minor coparcener These difficulties were, however, not considered by the learned Judges. Another case to which reference has been made in the course of the argument is Rangasayi v. Nagaratnamma, 57 Mad. 95 [LQ/MadHC/1933/38] : (A.. R. (20) 1933 Mad. 890 [LQ/MadHC/1933/38] F. B.). That was a suit for partition instituted on behalf of a minor. This case has no direct bearing on the point now under consideration. The Court merely purported to reiterate the rule laid down by the decisions of the Judicial Committee already cited. All the Judges, however, agreed that if an adult coparcener filed a suit for partition, the severance takes place from the date of the plaint and not from the date when summons is served on the defendants, and the same result would follow if a suit for partition filed on behalf of a minor happens to be decreed by the Court. This can only be on the principle that the date of communication to the defendants by service of summons in the suit is not the starting point of the severance in status.

(16) I now turn to two decisions of this Court which have considerably qualified the rule as to the necessity for communication of an intention to divide. The first is Rama Iyer v. Minakshi Ammal, 33 M. L. W. 384 : (A. LR. (18) 1931 Mad. 278) [LQ/MadHC/1930/262] , where, a father after instituting a suit for partition against his son, but before the son was served with summons, settled his share of the property on his daughters and died before the suit came on for trial. The son attacked the settlement on the ground that until summons was served and the contents of the plaint were communicated to him, there was no division in status between the father And the sou and the settlement having been executed by an undivided member of the joint family was invalid. Madhavan Nair J. upheld the validity of the settlement with the following observation:

"if the severance of the joint status can be brought about by individual volition, and the assent of the cosharers is not necessary for it, then, I fail to see how it can be said there could be no severance so far as the plaintiff in a suit is concerned, unless the intention is actually communicated to the other coparceners. This position is clearly not opposed to the ruling of the Privy Council which states that the unequivocal intention o the separating coparcener to be effective must be clearly expressed to the other coparceners. Notice to the other cosharers of the plaintiffs intention to separate would be necessary to make the severance operative against them so that they may know he is claiming his share of the joint family property from the date of the plaint and that the severance is final; but it cannot, I think, be a condition precedent to bring about a severance of the joint family status so far as the plaintiff is concerned. To make this severance effective as against the remaining coparceners notice would no doubt be necessary. "

I very much regret my inability to follow the reasoning. If the filing of the plaint effects a severance so far as the plaintiff is concerned, then the defendants must necessarily become severed from him. If service of summons and the plaint on the defendants is necessary to make the severance effective as against the defendants, then till the service of summons, there can be no severance even as regards the plaintiff. There cannot be two dates for the severance, one on the date of the institution of the suit so far as the plaintiff is concerned and the other on the date of the service of the summons as regards the defendants, when the parties between whom severance is effected are the same, namely, the plaintiff on the one hand and the defendants on the other.

(17) The next decision that calls for detailed notice is Narayanarao v. Purushothamarao,. L. R. 1938 Mad. 315 [LQ/MadHC/1937/336] : (A. L R. (25) 1938 Mad. 390) [LQ/MadHC/1937/377] decided by Varadachariar and King JJ. In that case a father gave a registered notice of his intention to divide himself from his son, but the notice did not reach the son till four days after the death of the father. After issuing the notice the father executed a will making dispositions of his share of the property and died. The son contested the validity of the will on the ground that the father was undivided with him at the time of his death and the law of survivorship prevailed against the will. The Court, however, upheld the will, their Lordships taking the view that a severance of status took place from the date when the communication of the intention to separate was sent by the father and not from the date when it was received by the son. The Court held that the date of receipt of the communication by the coparcerner was, in the circumstances, immaterial. Varadachariar J. who delivered the judgment of the Bench observed as follows :

"it is true that the authorities lay down generally that the communication of the intention to become divided to other coparceners is necessary, hut cone of them lays down that the severance in status does not take place till after such communication has been received by the other coparceners. We see no reason to interpret the reference to communication in the various cases as implying that the severance does not arise until notice has been actually received by the addressee or addressees. "

Later in the course of the judgment his Lordship referred with approval to the decision of Madhavan Nair J. in Rama Iyer v. Meenakshi Ammal, 33 M. L. w. 38

4. : (A. . r. (18) 1931 Mad. 278) [LQ/MadHC/1930/262] and held that the issue of the notice, in so far as the testator was concerned, was sufficient to prevent the operation of the principle of survivorship. It is necessary to pause and consider the effect of this pronouncement. Suppose on 1-1-1948, A, a member of a joint Hindu family, made a clear and formal declaration in writing that he was divided in status from the other members of the family and also published its contents in a newspaper. Suppose he died without giving notice to the other members of the family of his intention to divide and the other members of the family became aware of his declaration a year after his death, say, on 1-1-194

9. Is it to be said that the unilateral declaration was effective so far as A was concerned as and from 1-1-1948 and so far as the other members were concerned only from 1-1-1949 Or is it to be said that as soon as the other members came to know of the declaration of intention on 1-1-1949 it related back to 1-1-1948 so far as they too were concerned. A joint family may, and a tar wad does often consist of numerous individuals. There are tarwads containing more than 100 members, many of whom are pursuing different walks of life in foreign countries. There may be infanta in the tarwad and children in the womb. Is it to be said that service of notice of an intention to divide on the part of one member to every one of the other members is essential if a severance in status is to be brought about Supposing the notice is served on the karnavan today and on the junior members on various subsequent days running over a couple of months, does the severance take place on the date of the issue of the notice or on the date when service can be said to have been effected on all the members Or does the severance take place on each of the dates when notice is served on each of the members so far as the particular recipient is concerned If, as held by Varadachariar J. , the severance in status takes place as soon as the dividing member has published his intention to divide even though the other members of the family have not been notified about it, does it not really mean that communication to the other members of the family is not indispensable to create a severance Supposing the addresses of some members of the family are not known and a member is about to die and is desirous of getting himself divided and making a provision for his wife and daughters. Is he to serve those members by some method analogous to substituted service Is he prevented from executing a will till all the members are served either in person or by the method of substituted service If subsequent notice to the other members acts retroactively and creates a division in status from the date of the declaration itself, are you not effectively doing away with the necessity of communication as a condition of severance in the present case, all the members of the tarwad today know that the deceased member, shortly before her death, published her intention to become divided by issuing a notice to the karnavan demanding a partition and the notice itself is exhibited in the suit. If their present knowledge is to be related back to the date of the issue of the notice, why should not the deceased member be considered to have died divided in status though a considerable interval has elapsed between the date of the issue of the notice and the date when it was filed as an exhibit in the case and came to the knowledge of the other members

(18) The only logical rule furnished by the texts of Hindu law as interpreted by the decisions of the Privy Council, appears to me to be that a unilateral declaration of an intention to become divided on the part of a member of a joint hindu family effects a severance in status. The declaration must be clear, unequivocal and unambiguous. There must be some manifestation, indication, intimation or expression of that intention to become divided, so as to serve as authentic evidence in case of doubt or dispute. What form that manifestation, expression or intimation of intention should take would depend upon the circumstances of each case, there being no fixed rule or rigid formula. The despatch to or receipt by the other members of the family of a communication or notice an nouncing the intention to divide on the part of one member of the family, is not essential nor its absence fatal, to a severance in status.

(19) Mr. K. P. Ramakrishna Aiyar, the learned advocate for the respondents, drew my attention to the serious consequences of the view I am taking, particularly, the danger of tainted evidence about such declarations and manifestations of intention to become divided. Even if a communication were regarded as essential to create a severance, the law does not require that the declaration or the communication should be in writing. Oral declaration of an intention to divide and oral communication of such intention are quite sufficient in law. The Court would no doubt require clear and convincing evidence of such a declaration of intention before it acts upon it. As regards the danger of perjured evidence and the heavy burden that will be thrown upon Courts, I have only to state that Courts are here to shoulder that burden as part of their duty. The machine is not to be put above the work it has to do. Oral wills (permitted in the moffussil till 1925), oral authorities to adopt, oral partitions, oral surrenders or releases, oral declarations of intention to divide and oral communications of such intention have had to be adjudicated upon by Courts and my conclusion in this case is not likely to add appreciably to the burden of the Courts or the volume of tainted evidence. As pointed out by Sadasiva Aiyar. in Sounderaraja v. Arunachalam, 39 Mad. 159 : (A.. r

. (3) 1916 Mad. 1170 [LQ/MadHC/1915/145] (F. b.)) and my learned brother Panehapagesa Sastri J. in this case, it is always open to the Legislature to enact that a declaration of intention to become divided by a member of a joint Hindu family should be in writing and registered.

(20) Assuming that communication of an intention to become divided on the part of a member of a joint Hindu family or a tarwad to the other members is an essential condition of the doctrine of severance in status by a unilateral declaration, the farther question that arises is, whether a communication of such intention to the manager of a joint Hindu family or in the case of a tarwad, to the Karnavan of the tarwad, is sufficient or whether a communication to all the members of the family is necessary in order to effect a severance in status. There is no direct authority on the point one way or the other. The decisions that refer to communication or intimation of an intention to divide on the part of a member of a joint Hindu family assume in a general way that the communication is to be made or the intimation is to he given to the "co- sharers". e. , coparceners. But these observations are of a general character and must not be understood as decisive of the point now raised, one way or the other. The manager of a joint Hindu family has the power or the right to represent the family in all transactions relating to it so far as the outside world is concerned. He is entitled to act on behalf of the family without taking the consent of the other members. A manager can sue and be sued without joining the other members of the family; in respect of family transaction the manager represents the entire family in such suits. The result of the litigation would be binding on the members of the family, in the absence of fraud or collusion. The position of the karnavan of a Malabar tarwad is similar and was thus described by Holloway J. "a Malabar family speaks through its head, the karnavan. " The question, however, is whether this power or right of representation enables the manager of a joint Hindu family or the karnavan of a Malabar tarwad to receive on his own behalf and on behalf of all the members of the family a notice given by an outgoing member of his intention to become divided from the rest of the family. It is open to one member of a joint Hindu family to separate himself from the rest leaving the latter to continue as before as members of the joint family. If one coparcener dies or drops out, the corporate character of the family is not lost thereby. The true position is stated by the Judicial Committee in Palaniammal v. Muthu Venkatachala, 48 Mad. 254 [LQ/PC/1924/81] : (A.. R. (12) 1925 P. C. 49) in these words:

"it is now beyond doubt that a member of a joint family can separata himself from the other members of the joint family and is, on separation, entitled to have his share in the property on the joint family ascertained and partitioned off for him, and that the remaining coparceners, without any special agreement amongst themselves, may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition, of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on. "

If the remaining members continue as a joint family, the manager of the family would represent them in all transactions with the outside world, including the outgoing member. It is not as if the manager or any of the remaining members of the family have any voice, veto or option in the matter. All of them have to submit, willy nilly, to the demand of a coparcener for the separation of his share, for, it is a matter of his own individual volition. The notice or communication of an intention to become divided is only of evidentiary value, assuming, of course, that it is an indispensable piece of evidence. If it were the law that the separation of one member ipso jure causes a separation of all the members of the family, on the analogy of the death or retirement of partner in a partnership, one can understand the necessity for a notice individually to all the remaining coparceners.

(21) When that is not the case I fail to see why a notice issued to the manager of the family who would continue to represent the remaining members of the joint family is not a sufficient notice to the remaining members themselves. Quoad the joint family, the position of an outgoing member is like that of a stranger and I do not see any reason why the manager of the family, acting on behalf of the remaining members and representing them, should be disabled from receiving a notice of separation given by the outgoing member. There might be transactions between an individual member of a joint family and the joint family itself represented by the manager. A member of a joint Hindu family can do business with, lend to or borrow from the joint family represented by its manager. In Bhuru Mal v. Jagannath, 1948-1 M. L. J. 70 : (A.. R. (29) 1942 P. C. 13) a case which was apparently not brought to the notice of my learned brethren, the Judicial Committee have gone to the length of holding that it is open to a coparcener in his own individual capacity to enter into a contract of partnership with the joint family of which he is a member, the joint family being represented by the manager. Such a transaction can be effected by the members of the family through the medium of the manager, the joint hindu family being regarded as an entity capable of being represented by its manager. If so much is granted, I fail to see why an intimation or communication of the intention of one member to divide, given to the person who would continue to be the manager of the joint family after the severance of the outgoing member is not sufficient notice to the remaining members who form the joint family.

(22) The analogy of a suit for partition is not conclusive on this matter. In order to prevent a multiplicity of suits and give a finality to litigation, the procedural law insists upon every member of the family, entitled to a share in the family properties being made a party to a suit for partition and also upon the inclusion of every item of family property. A suit for a division in status alone without a de facto division of the properties is inconceivable. If there is to be a division by metes and bounds, then the wishes of all the sharers have to be consulted as regards the best method of allotment of property consistent with the interests of all the sharers. A division in status depends upon the volition of the separating member, while a division by metes and bounds requires the agreement of all the parties or the decree of a Court.

(23) I am glad to be fortified in my conclusion by the opinion of so eminent a lawyer as the editor of the latest edition of Maynes Hindu Law extracted in the judgment of Satyanarayana Rao J. My learned brother Panchapagesa Sastri J. has drawn attention to the fact that both in Girija, Bai v. Sadashiv Dhundiraj, 43 Cal. 1031 : (A.. R

. (3) 1916 P. C. 104) and Kotayya, v. Krishna Eao,. L. R. (1945) Mad. 710 : (A.. R. (32) 1945 Mad. 290) [LQ/MadHC/1944/324] notice of the intention of an outgoing member to separate himself from the family was given only to the managing member. I may also add that in the former case the manager was only a de facto manager. As, however, the present point was not raised or considered in those cases, I do not rely on them as binding precedents.

(24) Out of the respect I entertain for the opinion of my learned brother Satyanarayana Rao J. , I have set out at some, but I hope not unnecessary length the considerations which have led me to form an opinion contrary to his own. For the reasons indicated in my judgment, I would answer the question referred tome in the affirmative. The appeal was finally allowed.