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TMI Blog1934 (8) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstance. That child died sometime later, and to add to the misfortune of the parties, relations between Krishna Josier and first plaintiff's father-in-law became strained, so much so that, early in 1922, Krishna Josier left his old house and thereafter lived in a new house of his own. The result of this step was that Krishna Josier's daughters were more with him than before, while the first plaintiff's wife and her father stayed in the old house. The wife had not even attained majority by that time, and as the first plaintiff required care and attention, he would appear to have been living generally with his father and sisters. These circumstances necessitated a change of the scheme of the original will (Ex. A) and Krishna Josier accordingly executed a new will, Ex. B on 31st December, 1922. The relations between Krishna Josier and the first plaintiff's father-in-law grew worse day by day, and at the time of the registration of Ex. B there seem to have been very unpleasant manifestations of protest on the part of the first plaintiff's wife. It is also not unlikely that Krishna Josier was made to feel, in an increasing degree, the reasonableness of making som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e family properties might be divided into two equal shares and one share might be given to the plaintiffs. 4. Krishna Josier's two daughters, their husbands and their children were impleaded as the main defendants, as they took benefits under Exs. I and II, and some of them had been appointed trustees under Ex. VI. They contended that Exs. I, II and VI were operative and that Ex. I, brought about a severance of status and also embodied a fair and equal division of the family properties, though, in view of first plaintiff's mental condition, the property set apart for his share was placed under competent management to be handed over to first plaintiff's sons, if any. The contentions thus raised formed the subject-matter of issues 6, 7,8 and 11. 5. The plaint also adopted another line of attack on Exs. I, II and VI, by suggesting that they were brought about by undue influence and that owing to age, illness and other causes, Krishna Josier was not, at the time, in a fit condition to conceive of such an arrangement and execute the documents of his own accord or with sufficient knowledge of their nature and effect. These allegations were denied by the defendants and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not to the daughter's house that Krishna Josier went in January 1922, but to a new house of his own, and there the second defendant seems to have come and lived with him. 8. In dealing with the question of partition, Mr. Venkatarama Sastriar stated his argument as follows: (i) If Krishna Josier was anxious to obviate the possibility of any future sons of the first plaintiff asserting rights by survivorship, he could not successfully do so by the device of a partition, because there could be no partition as against future coparceners except through living co-parceners, (ii) At the date of Ex. I, the first plaintiff was not in any sense a co-parcener, and therefore there could be no partition between him and his father, (iii) Even if a partition between the first plaintiff and his father were legally possible Ex. I could not, in view of its terms, be construed as a partition or even as effecting a severance of status between them. 9. The first proposition is unexceptionable. As to the second, the learned Counsel admitted that the decision of a Bench of this Court reported in Muthusami Gurukkal v. Meenammal (1919) I.L.R. 43 Mad. 464 : 38 M.L.J. 291 is against him. But he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) the reunited parcener. It is obvious that the principles of succession are different as amongst these three groups. In the first, it is by survivorship (even in respect of the father's self-acquired property, according to the scheme of the Mitakshara). In the second it is by inheritance pure and simple. In the third group it is an anomalous rule of successsion which has now been assimilated to the principle of survivorship. When in placitum 6, Vijnaneswara goes on to draw a distinction between disqualification prior to division and disqualification subsequent to division, he is developing something like the modern theory of vesting and divesting, which is only latent in the original texts. But the statement in placitum 7, as regards the right of a person whose disqualification subsequently disappears, is wholly the author's own; there is nothing corresponding to it even in the Dayabhaga system of Jimutavahana. The Mitakshara bases this rule on the analogy of the after-born son. Having introduced this conception, Vignaneswara does not pause to make it clear whether this doctrine of restoration is to be applied, even to cases of strict inheritance (Sapratibandha) by co-hei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eopening of the partition. If so, the analogy is not inconsistent with a dormant co-parcenership in the disqualified co-parcener just as in the case of the son in the mother's womb at the time of the partition. But it is after all only an analogy and ought not to be pushed to what may seem to be its logical results, especially when the placitum covers cases even of congenital disqualification. It is any how reasonable to assume that the passages in the Mitakshara do not by their terms decide the exact legal status of a co-parcener, who has come under a disqualification subsequent to his birth. If, then, the logical application of the theory of right by birth justifies a differentiation between a man, who is congenitally disqualified and one subject to a supervening disqualification, there is nothing in the Mitakshara which precludes the recognition of such a distinction. Such a course is warranted by the fact that similar, if not identical, distinctions have been developed by some of the commentators of the Mitakshara school; for instance, by the Sarasvati Vilasa, between disqualified persons who are fit for marriage and those who are not. 13. Before passing on to the next p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-and such a construction would seem to be justified by the succeeding sentences which contrast 'birth status' with 'full status' and speak of the disqualification as only 'preventing enjoyment'. Mr. Sastriar drew our attention to certain passages in Pudiava Nadar v. Pavanasa Nadar (1922) I.L.R. 45 Mad. 949 : 43 M.L.J. 596 (F.B.) but there is nothing in that case that throws light on the question now before us. Apart from the fact that the Full Bench was only concerned with the question whether the rules as to exclusion were to be held obsolete or not, the disability of the excluded person in that case was congenital and there was no occasion for discussing the status of a person suffering from a supervening disability. 15. Once the conclusion is reached that a disqualified person may be a 'co-parcener' enough to take by survivorship, there is no reason why we should deny the possibility of such a severance of the joint status as would put an end to the right of succession by survivorship. Here again, the law relating to impartible estates furnishes some analogy, though there may be a difference as to the methods by which the severance of the join ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nite statement in it by the father that the undivided nature of the family should be cut off and a divided state brought about and he goes on to say I have settled that I (No. 1) am in a partitioned and divided state from No. 2 (the son) . At one stage we felt a doubt whether on this footing alone, the title of the defendants under the will Ex. II could be sustained, because it is a gift of specific properties and not of an undivided share see Natesa Aiyar v. Subramania Aiyar (1918) M.W.N. 703 but as there are also general words of devise in Ex. II Mr. Sastriar did not think fit to press that kind of objection. 17. Mr. Sastriar's main contention with reference to this view of Ex. I was that no division of status could be brought about by such a declaration of intention, except on intimation of the same to the other co-parcener or his natural guardian, see Kamepalli Ayilamma v. Mannem Venkalaswami (1917) 33 M.L.J. 746 and Saraswatamma v. Paddayya (1922) I.L.R. 46 Mad. 349 : 44 M.L.J. 45 that in a transaction with himself, the father could not be guardian for his disqualified son Rangasayi v. Nagarathnamma (1933) 65 M.L.J. 630 at 639 (F.B.) and that in this case there has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s should be insisted on or as to the manner or circumstances in which the declaration of intention should or could be brought to their knowledge. Nor need we decide what should be done if the co-parcener under disability should happen to have no natural guardian. The conclusion in favour of a division of status in the present case could be rested on the ground that when a father brings about a division between himself and his sons as recognised in Kandasami v. Dorasami Aiyar 1935 M.W.N. 191 such an act is done in the exercise of a special power which he has under the texts and is independent of the doctrine of severance of status among co-parceners generally by a declaration of intention to become divided. 18. Against this last mentioned ground, Mr. Venkatarama Sastriar raised two points (i) that in executing Ex. I Krishna Josier did not purport to act in the exercise of the power that he had as a father, and it is not permissible to attribute it to that capacity when he has acted in assertion of an inconsistent right of exclusive ownership Balwant Singh v. R. Clancy (1912) L.R. 36 I.A. 109 : I.L.R. 34 All. 296 : 23 M.L.J. 18 (P.C.) and (ii) that the power recognised in Kandasam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 930) I.L.R. 52 All. 596. 20. We accordingly hold that the first plaintiff became divided from Krishna Josier by reason of Ex. I and as the transaction cannot be upheld as a partition, the plaintiffs are entitled to a division of the properties, except item 126 of the plaint schedule, which the lower Court has found to be family properties, into two equal shares and delivery of one share to themselves. In this view, it is unnecessary to decide issue No. 12. We have left it to the parties to consider whether it is necessary to go through the trouble and expense of a division by a Commissioner; but if they cannot agree upon some arrangement, the lower Court will take the necessary steps for effecting a division and pass a final decree. In making the division, the two items of assets specified in Ex. VIII (a) will also be taken into account. Ex. VI was executed by Krishna Josier only as a divided member. It cannot therefore bind the plaintiffs. 21. On the footing that the first plaintiff and his father became divided in status as from the date of Ex. I the plaintiffs are entitled to mesne profits, in respect of their share, between that date and the date of Krishna Josier's d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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