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PETITIONER: KALLYANI

       Vs.

RESPONDENT: NARAYANAN AND ORS.

DATE OF JUDGMENT27/02/1980

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. DESAI, D.A. SEN, A.P. (J)

CITATION:  1980 AIR 1173            1980 SCC  (2)1130  CITATOR INFO :  R          1983 SC 114  (31)

ACT:      Marumakkatayam  Law-Property  ancestral  and  of  joint family-Will executed  by a  testator would be ineffective as he had no power or authority to dispose of by will ancestral properties in his hand.      Partition  meaning  of-Hindu  Law-Effect  of  partition under Hindu  Mitakshara Law-A  Hindu father has the power to partition the  joint  family  property  which  includes  the disruption of joint family status.

HEADNOTE:      One Karappan  son of  Chulliparambil Krishnan  had  two wives Naini  and Ponni.  Through his first wife Naini he had four sons-Krishnan  (D1),  Shankaran  (D2),  Raman  and  the husband of  plaintiff appellant  Kallyani who died after him and Madhavan  who predeceased  him and  husband  of  D3  and father of  D4, D5  and D6-and four daughters. He had one son by name  Kesavan and  two daughters, through his second wife Ponni. One  Valli was  the second wife of his father and she had three daughters. Karappan and his family are Ezhavas and in the matter of inheritance, succession and on the question of personal  law they were governed essentially by customary law and  in the  absence of  any specific  custom, they  are governed by  the Hindu  Mitakshara law.  Karappan executed a registered deed  variously described  as a will or a deed of partition or  evidencing family  arrangement, Ex.  P1  dated January 25,  1910. In  this deed  after narrating  his  near relations including  his two  wives male and female children born to  each and his father’s second wife and her children, he described  the manner  in which  the A, B and C scheduled properties should  be taken  by them,  after his  death.  In February 1910  Karappan died.  Raman,  the  husband  of  the plaintiff appellant, the third son of the first wife died on February  20,  1936.  Plaintiff  widow  of  Raman  sued  for partition and separate possession of her undivided 1/4 share in properties set out in A, B and C schedules to the plaint. The Trial  Court  held  that  Ext.  P1  had  the  effect  of constituting a  coparcenary of  four brothers, sons of first wife of Karappan and that it was their joint family property and they  did not  hold as  tenants-in-common but  as  joint

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tenants and  were governed  by survivorship in the matter of succession. The contention that even in such a situation the widow would  be entitled to her husband’s share because of a customary right  was negatived. In respect of B & C schedule properties, it  was held  that they  belonged exclusively to defendant 1  and his wife and plaintiff cannot claim a share in them.  The High Court affirmed the Trial Court’s judgment and decree  treating Ex.  P1 as family arrangement and hence the plaintiff’s appeal by certificate.      Allowing the appeal, the Court ^      HELD: 1.  Ext. P1,  styled as  a will  by the  deceased Karappan is not effective as a will. If by Ext. P-1 deceased Karappan attempted  to make a will of the ancestral property in his hand in which his sons had acquired 1131 interest by  birth, obviously he had no power to make a will in respect  of such  property. Ex.  P1 does  not purport  to devise by  will the  undivided share of testator Karappan in the joint  family property, but he attempts to dispose of by a will  all the properties in which his sons had interest by birth. He  had not  claimed any  share in  the property  but claimed a  right to  deal  with  ancestral  property  as  he desired. In Ex. P1 itself he describes properties set out in schedules  A   and  B  annexed  to  Ex.  P1  as  his  tarvad properties. [1139B-C]      2. Expression  "tarvad" in  Marumakkattayam law  is the name given  to the  joint family  consisting  of  males  and females, all  descendants in  the female  line from a common ancestress. A  tarvad may  consist of  two or  more branches known as  ’Thavazhies’, each tavazhi or branch consisting of one of  the female members of the tarvad and her descendants in the  female line.  Thus when  property  is  described  as tarvad property  in a broad sense it is admitted to be joint family. This  also becomes clear from the recital in Ex. P.1 that properties  set out  in A  and B  schedules were tarvad properties and property in C schedule were claimed by him as his self-acquired  properties and they were to be kept joint and were  not sought  to be dealt with by Ex. P1. Therefore, to the  extent Ex.  P1 purports  to dispose  of an ancestral properties by  will it  would be  ineffective as  a will  as Karappan had  no power  or authority  to dispose  of by will ancestral properties in his hand. [1139C-G]      3. Partition  is a  word of  technical import  in Hindu law. Partition  in one  sense is a severance of joint family status and  coparcener of a coparcenary is entitled to claim it as  a matter  of his  individual volition. In this narrow sense all  that is  necessary to  constitute partition  is a definite and  unequivocal indication  of his  intention by a member of a joint family to separate himself from the family and enjoy  his  share  in  severalty.  Such  an  unequivocal intention to  separate brings  about a  disruption of  joint family status,  at any rate, in respect of separating member or members  and thereby  puts an end to the coparcenary with right of  survivorship and  such separated member holds from the time  of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such members. It  goes to his heirs displacing survivorship. Such partition irrespective  of  whether  it  is  accompanied  or followed by  division of  properties  by  metes  and  bounds covers both  a division of right and division of property. A disruption  of   joint  family   status  by   definite   and unequivocal indication  to separate  implies  separation  in interest and  in right, although not immediately followed by a de  facto actual  division of the subject-matter. This may

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at any  time, be  claimed by virtue of the separate right. A physical and actual division of property by metes and bounds follows from  disruption  of  status  and  would  be  termed partition in a broader sense. [1140A-E]      4. A  Hindu father  joint with  his  sons  governed  by Mitakshara law  has the  power to partition the joint family property at  any moment during his life time. The consent of the sons  is not  necessary for  the exercise of that power. This power  comprehends the  power to  disrupt joint  family status. [1141H, 1142A]      Kandaswamy v.  Doraiswamy Iyer,  [1880] ILR 2 Mad. 317; approved.      5. Even  though the  father  has  a  right  to  make  a partition of  the joint  family property in his hand, he has no right  to make  a  partition  by  will  of  joint  family property amongst  various members  of the  family except, of course, with  their consent.  In the instant case, if by Ex. P1 Karappan attempted to make 1132 a partition  of the  property by  his will,  Ex. P1 would be ineffective as  a partition.  By Ex.  P1 Karappan  does  not divide his property by metes and bounds vesting the share of each in present in each of his sons. [1142B-C]      Ex. P1 would not be effective as a partition in broader sense, namely,  dividing property  by metes  and bounds from the date  on which it was executed as it was to be effective from a  future date  and that  future uncertain even was the death of  Karappan and  that during the time he would remain alive he  would deal  with the properties at his sweet will. Further, there  was no  effective  partition  by  metes  and bounds by Ex. P1 though the shares of sons were specified as also the provision for female members was made. If intention of the  testator is  to be gathered from the language of Ex. P1 Karappan  intended it  to be  a will  not a  partition in presenti. Therefore, Ex. P1 cannot be effective as a deed of partition in  the broader sense i.e., partition by metes and bounds. [1142E-G]      Brijraj Singh v. Sheodan Singh, 10 I.A. 161; referred.      6. An  ineffective will sometimes though not always, if otherwise consented  by all  adult members, may be effective as a  family arrangement  but as the father of a joint Hindu family has no power to impose a family arrangement under the guise of  exercising the power of partition, the power which undoubtedly he  had but  which he  has failed to effectively exercise, it  cannot in  the absence  of consent of all male members bind them as a family arrangement. [1143D-F]      7. A family management must be an agreement amongst the various members  of the  family intended to be generally and reasonably for  the benefit  of the  family and secondly the agreement should  be with  the object either of compromising doubtful or  disputed rights  or for  preserving the  family property or  the place  and security  of the family. In this case, both these ingredients are absent. [1143F-G]      H. N. Aryamurthy & Anr. v. N. D. Subbaraya Setty (dead) through I.rs and Ors., [1972] 4 S.C.C. 1; applied.      Brijraj  Singh   v.  Sheodan   Singh,  40   I.A.   161; Lakshmichand v. Anandi, 53 I.A. 123; discussed.      8. To  be effective  as a  family arrangement  the deed must be  one intended  to  operate  from  the  date  of  the execution, and  it must be assented to and acquiesced in and acted upon  by all  affected party. In the instant case, Ex. P1 in  term reserves  to Karappan his right to deal with the property at his sweet will and was to be operative after his death. Moreover,  at the  time of  the execution  of Ex. P.1 there is no evidence as to who were the adult members of the

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family other  than Karappan  who consented  to  the  alleged family arrangement.  Assuming that  Ex. P1 was to be treated as family  arrangement after  the  death  of  Karappan,  the absence of  any evidence of agreement amongst family members entitled to  share, to  the terms  of Ex.  P.1 when  it  was executed, the  absence of  any dispute  at or about the time Ex. P.1  was executed  amongst the  members  of  the  family sought to  be settled by Ex. P.1 and the absence of evidence that arrangement  was necessary  for  the  security  of  the family or property would wholly negative the contention that Ex. P.1  would furnish evidence of family arrangement. It is doubtful whether a Hindu father can 1133 impose family arrangement sans direct evidence of consent of each of his sons, to be effective after his death. Therefore Ex. P-1  does not  furnish evidence  of family  arrangement. [1444E-H, 1145A-C]      9. In  Hindu Law  qua joint  family  and  joint  family property the  word partition’  is understood  in  a  special sense. If  severance of joint family status is brought about by a  deed, a  writing  or  an  unequivocal  declaration  of intention to  bring about  such disruption,  qua  the  joint family, it  constitutes partition. To constitute a partition all  that   is  necessary  is  a  definite  and  unequivocal indication of  intention by  a member  of a  joint family to separate himself  from the family What form such intimation, indication or  representation of  members should  take would depend upon  the  circumstances  of  each  case.  A  further requirement is  that the unequivocal indication of intention to separate must be to the knowledge of the persons affected by such  declaration: This  intention  to  separate  may  be manifest  in   diverse  ways.   Undoubtedly,  indication  or intimation must  be to members of the joint family likely to be affected by such a declaration. [1145E-H, 1146A]      Raghavan v.  Chenchamma, A.I.R. 1964 S.C. 136; referred to.      10. Partition  can be  partial qua  person and property but a  partition which  follows disruption  of joint  family status will  be amongst those who are entitled to a share on partition. Till  disruption of  joint  family  status  takes place no  coparcener can  claim what  is his  exact share in coparcenary property.  It is liable to increase and decrease depending upon  the addition to the number or departure of a male member  and inheritance  by survivorship.  But  once  a disruption of  joint family  status takes place, coparceners cease to hold the property as joint tenants but they hold as tenants-in-common. [1146E-G]      In the  instant case, on death of Karappan, Kesavan the son of  the second wife obtained a physical partition of the property took  his owon share and left the family, there was first a  disruption of  the joint  family status. Looking to the terms  of Ex. P-1 there was a disruption of joint family status as  the share  of each  son was specified and vested, liabilities and  obligations towards the family members were defined and imbalance out of unequal division was corrected. This certainly  has the  effect of bringing about disruption of joint family status and even if there was no partition by metes and  bounds and  the coparceners  continued to  remain under the same roof or enjoyed the property without division by metes  and bounds,  they did  not hold  as joint  tenants unless re-union is pleaded and proved. [1146G-H, 1147A]      11.  There   is  no  presumption  when  one  coparcener separates from  other that  the latter  remained united.  An agreement amongst  them must  be  proved  either  to  remain united or  to re-unite.  A Hindu  family is  presumed to  be

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joint unless the contrary is proved but where it is admitted that one  of the  coparceners did  separate himself from the other members  of the  joint family and had his share in the joint  property   partitioned  off  for  him,  there  is  no presumption that the rest of the coparceners continued to be joint. There  is no  presumption on  the other side too that because one member of the family separated himself there has been separation  with regard  to all. It would be a question of fact  to be  determined in  each case  upon the  evidence relating to the intention of the parties whether there was a separation amongst  the other  coparceners or  they remained united. Except that four sons by Naini remained 1134 under one  roof and  were joint  in food  laboured  together there is  no evidence  that  they  agreed  to  constitute  a coparcenary assuming  that a  coparcenary a  creature of law could be  created by  agreement. And  if Karappan  specified even the share of each of his sons by Naini in Ex. P-1, this evidence of  remaining  together  is  hardly  sufficient  to warrant a  conclusion that  these four  sons  constituted  a coparcenary. Ex.  P-1, could  not support  such a conclusion and the  High Court  was  in  error  in  spelling  out  such conclusion from  Ex. P-1  overlooking its specific direction of a  specified share  of each  of his sons and liability to pay owelty. [1148B-F]      Palani Ammal v. Muthuvenkatachala Mariagon, 52 I.A. 83; Bhagwan Dayal  v. Mrs.  Reoti Devi,  [1962]  3  S.C.R.  440; Balabax v.  Rukhmabai ILR  3C IA.  130;  Sengoda  v.  Muthu, I.L.R. 47 Mad. 567; referred to.      Bhagwati Prasad Shah and Ors. v. Pulhin Rameshwari Juer and Anr., [1951] S.C.R. 603, followed.      12. Partition  branchwise is unknown to Mitakshara Law. In  the   instant  case,  if  five  sons  of  Karappan  each constituted a  branch obviously  after one  son as  a branch separated unless  a reunion  is pleaded,  other four  cannot constitute a  corporate body like a coparcenary by agreement or even by subsequent conduct of remaining together enjoying the property together. [1148F, 1149E]      Balakishan Das and Ors. v. Ram Narain Sahu and Ors., 30 I.A. 139;  bhagwan Dayal  v. Mrs. Reoti Bai, [1962] 3 S.C.R. 440; Boddu  Venkatakrishna Rao  and Ors. v. Boddu Satyavathi and Ors., [1968] 2 S.C.R. 395; referred to.      13. Once disruption of joint family status takes place, it covers both a division of right and division of property. If a  document clearly  shows the  division  of  rights  and status its  legal construction  and effect cannot be altered by evidence of subsequent conduct of parties. [1150C]      14. There  is no  concept known to Hindu Law that there would be a branch of a family wife-wise. [1150D]      In this case Ex. P-1 itself specifies the share of each member separately.  Therefore, tavazhi  wife-wise stated  in Ex. P-1  has to  be  ignored.  Ex  P-1  did  bring  about  a specification of shares and once such shares were defined by the father  who had the power to define and vesting the same there was  a disruption  of joint  family. There  was thus a division of  rights and division of property by allotment of shares.  The  mode  of  enjoyment  immediately  changed  and members of  such family  ceased to be coparceners holding as joint  tenants  but  they  held  as  tenants-in-common.  The plaintiff would  be entitled  to  the  share  to  which  her deceased husband  Raman was  entitled. Raman had 1/4th share in ’A’  schedule properties  which the  plaintiff  would  be entitled. [1150D, E-F, 1151C]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2544 of 1969.      From the  Judgment and  Decree dated  21-12-1965 of the Kerala High Court in A.S. No. 403 of 1961. 1135      P.  Govindan   Nair,  C.  S.  Ananthakrishna  Iyer,  S. Balakrishnan and Mrs. Baby Krishnan, for the Appellant.      T. S. Krishnamurthy Iyer and Mrs. S. Gopalakrishnan for the Respondents.      E. M. S. Anam and P. N. Pura for Respondent No. 9.      The Judgment of the Court was delivered by      DESAI, J.-On a certificate granted by the Full Bench of the High  Court of Kerala, original plaintiff, a Hindu widow who was  seeking partition  of a share to which her deceased husband was  entitled, having  lost in  both the Courts, has filed this  appeal. The  High Court  granted the certificate under Article  133(1)(c)  of  the  Constitution  as  in  its opinion the  following substantial  questions of  law  arise from the judgment rendered by it:      1.   Whether under  the Mitakshara  Law the parties are           governed by  customary law, and, in the absence of           any  rule   of  customary  law  on  the  point  in           question,  by   Mitakshara  Law  property  can  be           divided, albeit  by a  family settlement,  between           two  artificial  units  of  a  joint  family,  one           comprising the sons of a father by his first wife,           the first  wife and his step mother, and the other           comprising his  son by  his second  wife  and  the           second wife  so as  to constitute each unit into a           coparcenary with  rights of  survivorship  between           its members; and      2.   Whether the use of the word ’tavazhi’ (in any case           a misnomer)  in describing  the two  units in  the           will, Ext.  P-1 left  by the father and held to be           the basis  of the family settlement, is sufficient           in the  circumstances, to  establish an  intention           that the  members of  each unit  were to  take the           property as  coparceners and  not  as  tenants-in-           common, the  grouping into  units being  only  for           convenient enjoyment?      The factual  background from  which, according  to  the High Court  the  aforementioned  two  questions  emerge  for consideration of this Court may be stated.      One Karappan,  son of  Chulliparambil Krishnan, had two wives Nani  and Ponni.  Defendant 1  Krishnan,  defendant  2 Shankaran, one  Raman, husband  of plaintiff  Kallyani,  and deceased Madhavan,  husband of  defendant 3  and  father  of defendants 4, 5 and 6, were his sons by first wife Nani, and one Kesavan was his son by the second wife Ponni. He had six daughters, four by the first wife and 1136 two by the second wife. One Valli was the second wife of his father and  she had three daughters. Karappan and his family are Ezhavas and in the matter of inheritance, succession and on  the   question  of   personal  law  they  were  governed essentially by  customary law  and in  the  absence  of  any specific custom  they are  governed by  the Hindu Mitakshara Law. Karappan executed a registered deed variously described as a  will or  a deed  of  partition  or  evidencing  family arrangement, Ext.  P-1 dated  January 25,  1910, the salient features of  which may  be reproduced.  After narrating  his near relations  including his  two wives,  male  and  female children born  to each  and his father’s second wife and her

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children, the following recitals are worthy of note:           "There are  as belonging  to me  now properties to      the value  of Rs.  8000/- mentioned  in the  sub-joined      schedules A  and B  as my tarwad properties and also my      self-acquired properties and properties to the value of      Rs. 200/-  of the  C schedule  which is  set  apart  as      common properties".           "Since I  am seriously ill and in order that there      may not  arise any  dispute in  future  in  respect  of      properties belonging  to me,  I have resolved today the      following with regard to the course of enjoyment of the      said properties after my death".           "I  myself   shall  have   the  full   powers   of      disposition over  all the  properties described in A, B      and C schedules during my life time and after my death,      out of  the properties  to the value of Rs. 8000/-, Rs.      1300/- worth  of properties  shall vest  in each  of my      male issues,  Rs. 300/- in my first wife, Rs. 1000/- in      my second  wife since  she is  sick and Rs. 200/- in my      father’s second wife".           "On the  above basis I have set apart to be vested      in them  after my  death Rs. 5200/- worth of properties      to the first tavazhi male issues, Rs. 300/- to my first      wife and  Rs. 200/-  to my  father’s  wife,  altogether      properties worth  Rs. 5700/-  scheduled to  A schedule;      Rs. 1300/-  worth of properties comprising items 1 to 4      and 6  to 12  of B  schedule  to  the  second  tavazhi,      inclusive of  an owelty  of Rs. 227 as. 8 ps. 5 decided      to be  paid by the first tavazhi to the second tavazhi,      and item  5 of B schedule worth Rs. 1000/- to my second      wife".           "And that  1/5th share of assessment of C schedule      property shall be paid annually by Kesavan in the Amsom      and receipt obtained". 1137           "It is  also resolved that each tavazhi shall meet      the travelling  expenses of  female issues and maintain      properly the  women who  return on  the death  of their      husbands, that both tavazhis shall equally maintain the      children of  my aunt  and my  sister and  that since  C      schedule properties  are partitioned  now, all  my male      issues shall  have equal rights over the property after      my death".      This is a registered deed. Soon thereafter, in February 1910, Karappan  died. Raman,  the husband  of the plaintiff, the third  son of the first wife, died on February 20, 1936. Plaintiff widow  of Raman  sued for  partition and  separate possession of  her undivided 1/4 share in properties set out in A,  B and  C schedules  to the plaint. It is necessary to clarify here that there were A, B and C schedules annexed to Ext. P-1  which, for  clarity  of  understanding,  would  be referred to  as the  Will of the deceased though it would be presently pointed  out that  it is  ineffective as  a  Will. Schedules A  and B  to Ext.  P-1 specify certain properties. Properties set out in schedule B to Ext. P-1 except item No. 5 were  awarded to  Kesavan, the son by the second wife, and item No.  5 to  the second wife. Properties in schedule A to Ext. P-1  subject to adjustment pointed out in Ext. P-1 were given to  the first wife and her sons. Properties set out in schedule C  to Ext.  P-1 were  kept undivided  and were  the subject-matter  of   another  suit   filed  by  the  present plaintiff which  has ended  in a  decree in  her favour  and which decree has become final. On the other hand, properties set out  in schedule A to the plaint are the very properties which are  shown in  schedule A  to Ext.  P-1. In respect of

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properties set  out in  the schedule  B to  the plaint it is alleged that  they were  acquired by  the  joint  labour  of defendants 1  and 2,  deceased Raman and Madhavan, and it is equally true  of properties  set out  in schedule  C to  the plaint but  they were  separately set out because they stood in the  name of the wife of defendant 1. Plaintiff, however, claimed 1/4  of her  share in  all the properties set out in schedules A, B and C to the plaint.      The suit was principally resisted by defendant 1 as per his written  statement dated  July 12, 1958. It was in terms contended that  the properties  dealt with  by Ext. P-1 were the joint  family properties  of Karappan  and his  sons and that Karappan  was not  entitled to  and had no authority in law to execute a Will in respect of the properties. There is an averment which may be extracted. It reads:           "Even though  Karappan has no right to execute the      Will accordingly,  what Karappan  actually did was that      he parti- 1138      tioned the  properties between  the  two  tavazhies  in      order to avoid future quarrel between the two wives and      their children.  As a  father he  has got  the right to      partition his properties according to the custom of the      community and  according to  the Mitakshara  law,  that      Will  would  be  valid  as  a  deed  of  partition  and      accordingly accepting  the same  later, properties  had      been taken  possession by the two tavazhies separately.      Even though  the execution  of such  a deed was against      procedure, it  was in  order to  honour the  wishes  of      deceased Karappan that the same was acted upon". In respect  of plaint  B schedule properties, the contention was that  it was acquired by the private income of the first defendant and  that schedule  ’C’ properties belonged to the wife of  defendant 1  and that plaintiff has no share in it. It was  also contended  that as  the four  sons by the first wife of  Karappan constituted  a tavazhi,  it  has  all  the incidents of  a coparcenary  and, therefore,  succession was governed by  survivorship and  hence the  plaintiff  has  no share in schedule A properties.      The trial  Court framed  as  many  as  12  issues.  The important findings  of the  Trial Court are that Ext. P-1 is neither effective  as a  Will nor  as a  deed of  partition. Without specifically  so  saying  that  Ext.  P-1  would  be effective as a family arrangement, it was held that Ext. P-1 had  the  effect  of  constituting  a  coparcenary  of  four brothers, sons  of first  wife of  Karappan and  that it was their joint  family  property  and  they  did  not  hold  as tenants-in-common but  as joint tenants and were governed by survivorship in  the matter  of succession.  The  contention that even in such a situation the widow would be entitled to her share  because of  a customary  right was  negatived. In respect of B and C schedule properties it was held that they belonged  exclusively  to  defendant  1  and  his  wife  and plaintiff cannot  claim a  share in  them.  Consistent  with these findings,  the plaintiff’s  suit was dismissed. A Full Bench of  the Kerala  High  Court  heard  the  first  appeal preferred by  the plaintiff.  The High  Court  substantially agreed with the findings of the trial Court and specifically held that  Ext. P-1 furnished important evidence of a family arrangement accepted  and acted  upon  by  all  the  parties affected thereby.  It was held that as family arrangement it is binding  and it  indicated  that  the  division  was  per branches, therefore,  the four  sons by  the first  wife  of Karappan divided  as one  branch and  one son  alone by  the second wife separated as a different branch and as four sons

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by the  first wife  constituted a  joint family,  succession would be  governed by  survivorship and the plaintiff is not entitled to claim any share in schedule A properties. 1139      On the  question of  acquisition of  schedule B  and  C properties, the finding of the trial Court was confirmed.      It may  be mentioned  that plaintiff  had filed another suit for  partition of  properties set  out in C Schedule to Ext. P-1 and that suit was decreed in plaintiff’s favour and that decree has become final.      Two questions  of general importance framed by the High Court are  rather involved and confusing and do not pinpoint the attention on questions of law emerging from the judgment of the High Court.      The first question that needs to be answered is whether Ext. P-1  styled as a Will by the deceased Karappan would be effective as  a Will.  If  by  Ext.  P-1  deceased  Karappan attempted to  make a  Will of  the ancestral property in his hand in  which his  sons had  acquired  interest  by  birth, obviously he  had no power to make a Will in respect of such property. Ext.  P-1 does  not purport  to devise by Will the individual share  of testator  Karappan in  the joint family property  but  he  attempts  to  make  a  will  of  all  the properties, ancestral  and self-acquired and even to dispose of property  in which  his sons  had interest  by birth,  by will. He  has not  claimed any  share in  the  property  but claimed a  right to  deal  with  ancestral  property  as  he desired. In  Ext. P-1 itself he describes properties set out in schedules  A and  B annexed  to Ext.  P-1 as  his  tarvad properties. Expression  ’tarvad’ in  Marumakkattayam Law  is the name  given to  the joint family consisting of males and females, all  descended in  the female  line from  a  common ancestress. A  tarvad may  consist of  two or  more branches known as  thavazhies; each  tavazhi or  branch consisting of one of  the female  members of the tarvad and her decendents in the  female line  (see Mayne’s  Hindu Law and Usage, 11th Edn., pp. 792-93.) Thus when property is described as tarvad property in  a broad sense it is admitted to be joint family property. This  also becomes  clear from the recital in Ext. P-1 that  properties  in  A  and  B  schedules  were  tarvad properties and property in C schedule were claimed by him as his self-acquired  properties and they were to be kept joint and were not sought to be dealt with by Ext. P-1. Therefore, to the  extent Ext.  P-1 purports  to dispose  of  ancestral properties by  will it  would be  ineffective as  a will  as testator Karappan had no power or authority to dispose of by will ancestral  properties in  his hand.  And as  he has not attempted to dispose of his undivided share in the ancestral properties by  Ext. P-1  it is not necessary here to examine the question whether Mitakshara law as administered in Tamil Nadu and  Kerala enables  an undivided coparcener to dispose of his  share in  joint family  property by will. Therefore, Ext. P-1 is not effective as a will and 1140 the respondents  did not  invite us  to affirm  their rights under Ext. P-1 as if it is a binding will.      The next  stage in the unfolding of the case is whether Ext. P-1 is effective as a partition. Partition is a word of technical import  in Hindu  law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this  narrow sense  all that  is necessary  to constitute partition is  a definite  and unequivocal  indication of his intention by  a member of a joint family to separate himself from the  family and  enjoy his  share in severalty. Such an

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unequivocal intention  to separate brings about a disruption of  joint   family  status,  at  any  rate,  in  respect  of separating member  or members and thereby puts an end to the coparcenary with  right of  survivorship and  such separated member holds  from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares  of such  members. It goes to his heirs displacing survivorship. Such  partition irrespective  of whether it is accompanied or  followed by  division of properties by metes and bounds  covers both  a division of right and division of property (see  Approviar v.  Rama Subha  Aiyar  quoted  with approval in  Smt. Krishnabai  Bhritar Ganpatrao  Deshmukh v. Appasaheb Tuljaramarao  Nimbalkar &  Ors.  A  disruption  of joint family status by a definite and unequivocal indication to separate  implies separation  in interest  and in  right, although not  immediately followed  by  a  de  facto  actual division of  the subject-matter.  This may  at any  time, be claimed by  virtue of  the separate  right (see Girja Bai v. Sadashiv. A  physical and  actual division  of  property  by metes and bounds follows from disruption of status and would be termed partition in a broader sense.      There was  some  controversy  whether  a  Hindu  father governed  by   Mitakshara  law  has  a  right  to  partition ancestral properties  without the consent of his sons. After referring to  Mitakshara, I,  ii, 2,  Mayne in  ’Hindu Law & Usage’, 11th  Edn. p.  547, states that a Hindu father under the Mitakshara  Law can  effect a  partition between himself and his sons as also between his sons inter se without their consent and  that not  only can  he partition  the  property acquired by  himself but  also the  ancestral property.  The relevant text may be extracted:           "The father  has power  to effect  a division  not      only between  himself and his sons but also between the      sons 1141      inter se.  The power  extends not  only to  effecting a      division by  metes and bounds but also to a division of      status". Similarly, in  Mulla’s Hindu  Law, 14th  Edn., p.  410 (para 323), it is stated that the father of a joint family has the power to divide the family property at any moment during his life time  provided he  gives his  sons  equal  shares  with himself, and  if he does so, the effect in law is not only a separation of  the father from the sons, but a separation of the sons  inter se. The consent of the sons is not necessary for the  exercise of  that power. It, therefore, undoubtedly appears that  Hindu father  joint with  his sons governed by Mitakshara law  has the  power to partition the joint family property at any moment during his life time.      Mr.  Krishnamoorty   Iyer  urged   that   even   though undoubtedly a  Hindu father joint with his sons and governed by Mitakshara  law has  the power  to  partition  the  joint family property,  this power  enables him  to partition  the property by  metes and  bounds but he has no power merely to disrupt the joint family status unaccompanied by division of property by  metes and  bounds. The  limited  question  that needs answer  in this  case is  whether a Hindu father joint with his  sons governed  by Mitakshara  law has the power to disrupt the  joint family  status being  a first step in the stage of  dividing the  property by  metes and  bounds.  The wider  question   whether  a  coparcener  of  a  coparcenary governed by  Mitakshara law  brings about  a  disruption  of joint family  status by  definite and unequivocal indication of his  intention to  separate himself from the family would constitute  disruption  of  status  qua  the  non-separating

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members need  not be examined. A Hindu father joint with his sons and  governed by Mitakshara law in contradistinction to other manager  of a  Hindu undivided  family or  an ordinary coparcener enjoys  the larger power to impose a partition on his sons  with himself  as well as amongst his sons inter se without their  consent and  this larger  power to divide the property by  metes and  bounds and to allocate the shares to each of  his sons  and to himself would certainly comprehend within its  sweep the  initial step,  viz., to  disrupt  the joint  family   status  which  must  either  precede  or  be simultaneously taken with partition of property by metes and bounds. This  view taken  in Kandaswami v. Doraiswami Ayyar; does not  appear to  have been  departed from.  Further, the text from  Mayne’s book extracted in the preceding paragraph shows  that   the  weight   of  authority   is  against  the proposition canvassed  for by  Mr. Iyer. It does, therefore, appear that a Hindu father governed by 1142 Mitakshara law  has power  to  partition  the  joint  family property belonging to the joint family consisting of himself and his  sons and  that this  power comprehends the power to disrupt joint family status.      The question  is, has  Karappan as father exercised his power to  partition the  joint family property by Ext. P-1 ? Even though  the father  has a  right to make a partition of the joint  family property  in his  hand, he has no right to make a  partition by  will of  joint family property amongst various members of the family except, of course, if it could be made  with their  consent (see  Brijraj Singh  v. Sheodan Singh. Whether it is effective as family arrangement will be presently examined.  Therefore,  if  by  Ext.  P-1  Karappan attempted to  make a  partition of the property by his will, Ext. P-1  would be  ineffective as  a partition. By Ext. P-1 Karappan does  not divide  his property  by metes and bounds vesting the share of each in presenti in each of his sons.      One thing  that is  not in dispute is that Karappan did not intend  Ext. P-1  to be effective from the date on which it was  executed. In  his own  words he  states that  he was seriously ill  and as  he would  like to  avoid a dispute in future in  respect of  his  properties  and,  therefore,  he resolved that  his property shall be enjoyed after his death in the manner stated in Ext. P-1. He reserved to himself the full powers  of disposition  over all  the  properties  more particularly described  in the  various schedules annexed to Ext. P-1  during his  life time and whatever directions were given in Ext. P-1 were to be effective only after his death. At two  places in terms he stated that the dispositions made by Ext.  P-1 were  to be  effective after  his death. It is, therefore, inescapable that Ext. P-1 was not to be effective as a  partition in  broader sense, namely, dividing property by metes  and bounds from the date on which it was executed. It was  to be  effective from  a future date and that future uncertain event  was the  death of  Karappan and that during the time  he would  remain alive  he  would  deal  with  the properties  at   his  sweet  will.  Further,  there  was  no effective partition  by metes  and bounds by Ext. P-1 though the shares  of sons were specified as also the provision for female members  was made. If intention of the testator is to be gathered  from the language of Ext. P-1 Karappan intended it to  be a  will to  be effective after his death. He never intended it  to be  a partition in presenti. Therefore, Ext. P-1 cannot  be effective  as a  deed  of  partition  in  the broader sense, i.e. partition by metes and bounds.      What then  is the  effective of  Ext. P-1  on the joint family  of  which  Karappan  was  father-cum-manager  ?  The

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respondents contend that 1143 it  is  a  family  arrangement  providing  for  carving  out branchwise (shakha  per wife)  separation of interest in the joint family  properties and as it was unreservedly accepted by all  affected thereby  after the death of Karappan, it is binding on  all. Appellant  contends that  Ext.P-1  had  the effect of  disrupting the  joint family status and from that date members of the joint family entitled to their shares in the joint family property, held as tenants-in-common and not as  joint   tenant  with  the  result  that  inheritance  by survivorship, a  special feature  of  a  Hindu  coparcenary, would be  displaced by Hindu law of succession, the property going to the heirs recognised by law.      Defendant 1 who contested the suit in terms stated that Ext.P-1 was  not effective  as a  will. He  than stated that Ext.P-1 purports  to partition  the property between the two tavazhies represented  by Karappan’s  two  wives  and  their respective male  offspring. It  may, however, be stated that nowhere in  the written  statement  he  has  put  forth  the contention  that  Ext.P-1  evidences  a  family  arrangement assented to  by all  affected thereby.  That case appears to have been  made out by the High Court for the first time and since the  plaintiff has been non-suited on the finding that Ext.P-1 was  a  family  arrangement  which  provided  for  a coparcenary of  four sons  of the  first wife  of  Karappan, retaining  inheritance  by  survivorship  amongst  the  four members it  is necessary  to examine  the contention whether Ext.P-1 provides for a family arrangement assented to by all concerned. An  ineffective will sometimes though not always, if  otherwise   consented  by  all  adult  members,  may  be effective as  a family  arrangement but  as the  father of a joint  Hindu   family  has  no  power  to  impose  a  family arrangement under  the guise  of  exercising  the  power  of partition, the  power which  undoubtedly he has but which he has failed to effectively exercise, cannot in the absence of consent  of   all  male   members  bind  them  as  a  family arrangement. What  constitutes family  arrangement has  been fully examined  by this  Court in M. N. Aryamurthy & Anr. v. M. D.  Subbaraya Setty  (dead) through  I.r. & Ors.. Broadly stated, it  is that  there must  be an agreement amongst the various members  of the  family intended to be generally and reasonably for  the benefit  of the  family and secondly the agreement should  be with  the object either of compromising doubtful or  disputed rights  or for  preserving the  family property or the place and security of the family. Both these ingredients appear  to be  absent in  this case.  In Brijraj Singh’s case  (supra) a  father purported  to make a will in which he  recorded a  partition of the joint family property amongst his  three sons. He did not take a share for himself and simultan- 1144 eously gave double share to his eldest son. There were usual recitals of  partition and  allotment of  shares and  it was further stated that in anticipation of execution of the deed various sharers  were put in possession of property allotted to each  of them.  This was  done two  months prior  to  the execution of  the so-called  will.  The  document  was  held ineffective as  a will but on evidence it was found that all concerned had acquiesced in the arrangement evidenced by the deed and  the deed  was intended to operate from the date of its  execution   and,  therefore,   it  evidenced  a  family arrangement contemporaneously made and acted upon by all the parties and  hence binding.  Similarly in  Lakshmi Chand  v. Anandi, two brothers having no male issue and constituting a

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joint  Hindu   family  governed   by  Mitakshara,  signed  a document, described  therein as an agreement by way of will. The document  provided in  effect that  if either party died without male issue, his widow should take a life interest in a moiety  of the  whole estate  and that if both the parties died without  male issue,  the daughters  of each,  or their male issue,  should divide  the father’s share. The document was registered.  A few  days after its execution one brother died, and  his widow was entered as owner of a moiety of the estate.  Subsequently   the  other   brother  sued   for   a declaration that  the document  was  null  and  void.  Privy Council held that the document could not operate as will but that as  a co-sharer  in a  Mitakshara joint family with the consent of  all his  co-sharers he could deal with the share to which he would be entitled on a partition and was binding as  family   arrangement.  To   be  effective  as  a  family arrangement the  deed must  be one  intended to operate from the date of its execution, a feature wanting in Ext.P-1, and it must  be assented  to and acquiesced in and acted upon by all affected  thereby. At  the time  of execution of Ext.P-1 there is no evidence as to who were the adult members of the family other  than Karappan  who consented  to  the  alleged family arrangement.  One thing,  however, may be pointed out that defendant  1 gave  his age  as 87 years on December 29, 1959, when  his evidence  commenced. Presumably he must have been born in 1872. But there is no evidence about the age of other children  of Karappan.  The only  evidence as  to  the consent of  the male  members is  that after  the  death  of Karappan all  male members  acted according to the wishes of Karappan as  disclosed and  ordained in Ext.P-1. Assuming it to be so, Ext.P-1 was to operate after the death of Karappan and not  from the  date of  execution. The  High Court after referring to  Brijraj Singh’s  case (supra)  overlooked  the fact that  in accepting  the deed  before it,  the  Judicial Committee was  impressed by the fact that it was intended to speak from  the date  on which it was written and not future date, viz., 1145 death of  the writer.  Ext.P-1 in terms reserves to Karappan his right  to deal  with the  property at his sweet will and was  to  be  operative  after  his  death.  The  High  Court completely overlooked  this  material  difference.  Assuming that Ext.P-1  was to  be treated as family arrangement after the death  of Karappan,  the  absence  of  any  evidence  of agreement amongst family members entitled to a share, to the terms of  Ext.P-1 when  it was  executed, the absence of any dispute at  or about  the time  Ext.P-1 was executed amongst the members  of the  family sought to be settled by Ext.P-1; and the  absence of  evidence that arrangement was necessary for the  security of  the family  or property  would  wholly negative the contention that Ext. P-1 would furnish evidence of family  arrangement. We  have grave doubt whether a Hindu father can impose family arrangement sans direct evidence of consent of  each of  his sons,  to be  effective  after  his death. Therefore,  Ext.P-1  does  not  furnish  evidence  of family arrangement.      Now, if  Ext.P-1 cannot  be  effective  as  a  deed  of partition inasmuch  as it  did not  result  in  division  of property by  metes and bounds, its effect on continued joint family status  may be examined. If it disrupted joint family status by  its  very  execution,  there  was  thereafter  no question of directing any family arrangement to be effective from a  future date  as per its terms and even though it may spell out a family arrangement what effect the disruption of joint family status would have on the mode of succession has

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to be ascertained.      One thing  is crystal clear that Ext. P-1 is not a deed of partition  in the sense it does not purport to divide the property amongst  various coparceners  by metes  and bounds. However, in  Hindu law  qua joint  family and  joint  family property the  word ’partition’  is understood  in a  special sense. If  severance of  joint status  is brought about by a deed, a  writing or  an unequivocal declaration of intention to bring  about such  disruption, qua  the joint  family, it constitutes partition.  (see Raghavamma  v. Chenchamma).  To constitute a  partition all  that is necessary is a definite and unequivocal  indication of  intention by  a member  of a joint family  to separate himself from the family. What from such  intimation,   indication  or  representation  of  such interest should  take would depend upon the circumstances of each case.  A further  requirement is  that this unequivocal indication of intention to separate must be to the knowledge of the persons affected by such declaration. A review of the decisions shows  that this  intention  to  separate  may  be manifested in diverse ways. It may be by notice or by filing a suit. Undoubtedly, indication or 1146 intimation must  be to members of the joint family likely to be affected by such a declaration.      Has  not   Ext.P-1  the  effect  of  bringing  about  a disruption of joint family headed by Karappan and consisting of himself  and his sons? The fact situation is that in Ext. P-1 Karappan  specified the  share of  each of his sons, the property allotted on share being valued at Rs. 1300/-each of the four  by the  first wife and one by the second wife, and vesting the  share so specified in each of his sons. He also specified value  of the property allotted to his first wife, to his  second wife and to the second wife of his father. In the process  he found  that something  more was given to the sons  of  his  first  wife  and  in  order  to  restore  the equilibrium of  treating his  sons equally, he directed that owelty to  the tune of Rs. 227/- and odd be paid by the sons of the  first wife  to the sons of his second wife. This was with a  view to  correcting the  inequality in  division  of shares. He  also states  that there will be two branches. He refers to  them as  tavazhies and  himself and his family as tarvad. Tarvad  is akin  to joint  family and  tavazhi is  a branch of  the family.  The High Court, however, treated the use of  the words ’tarvad’ and ’tavazhi’ and ’Karnavaran’ to be inappropriate  and hence  inconsequential. Similarly, the High Court  found specification of share of each of the male child as  not indicative  of a  partition in  the  sense  of disruption of joint family status.      Partition can  be partial qua person and property but a partition which  follows disruption of a joint family status will be  amongst those  who  are  entitled  to  a  share  on partition. On  death of  Karappan, Kesavan,  the son  of the second wife  obtained a  physical partition of the property, took his  own share  and left  the family. There was first a disruption of  the joint  family by specifying the shares in Ext.P-1. Till  disruption of joint family status takes place no  coparcener   can  claim  what  is  his  exact  share  in coparcenary property.  It is liable to increase and decrease depending upon  the addition to the number or departure of a male member  and inheritance  by survivor  ship. But  once a disruption of  joint family  status takes place, coparceners cease to hold the property as joint tenants but they hold as tenants-in-common. Looking to the terms of Ext.P-1 there was a  disruption  of  joint  family  status,  the  shares  were specified and  vested, liabilities  and obligations  towards

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the family members were defined and imbalance out of unequal division  was   corrected.  This  certainly  has  effect  of bringing about disruption of joint family status and even if there  was   no  partition  by  metes  and  bounds  and  the coparceners continued  to remain  under  the  same  roof  or enjoyed the 1147 property without  division by metes and bounds, they did not hold as joint tenants unless re-union is pleaded and proved.      It was, however, contended and the contention has found favour with  the High  Court that  when Kesavan,  the second wife’s son  of Karappan  took the properties allotted to his share and  left the  family, as  per terms  of Ext. P-1 four sons of  Nani were constituted joint tenants or members of a coparcenary. In reaching this conclusion reliance was placed by the  High Court  on  Palani  Ammal  v.  Muthuvenkatachala Moniagar. In  that case, after referring to Appovier’s case, (supra) it was observed as under:           "But  the   mere  fact  that  the  shares  of  the      coparceners 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.      It is  also now  beyond doubt  that a  member of such a      joint family can separate himself from other members of      the joint  family and is on separation entitled to have      his share  in the  property 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  after      their previous coparcener had separated from them."      In  Bhagwan  Dayal  v.  Smt.  Reoti  Devi,  this  Court examined the effect of a separation of one member of a joint family on  the joint  family status  and  on  the  remaining members in the light of the Privy Council decision in Palani Ammal’s case. (supra) The relevant observation is as under:           "The general  principle is that every Hindu family      is presumed  to be joint unless the contrary is proved:      but this presumption can be rebutted by direct evidence      or by  course of conduct. It is also settled that there      is no  presumption that  when one member separates from      others that  the latter  remained united;  whether  the      latter remain  united or  not must  be decided  on  the      facts of each case." 1148      In fact,  Judicial Committee  in Balabux  v.  Rukhmabai unequivocally held  that there  is no  presumption when  one coparcener separates  from others  that the  latter remained united. An  agreement amongst  them must be proved either to remain united  or to  reunite. In Sengoda v. Muthu, the High Court interpreted  Palani Ammals  case to lay down that if a partition takes  place with  respect to  one coparcener, the decree or  the deed bringing about partition would provide a pointer as  to the  effect of  the decree or the deed on the remaining coparceners. In Bhagwati Prasad Shah & Ors. Dulhin Rameshwari Juer  & Anr.,  this Court  pointed out  that  the general principle  undoubtedly is  that a  Hindu  family  is presumed to be joint unless the contrary is proved but where it is  admitted that  one of  the coparceners  did  separate himself from  the other  members of the joint family and had

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his share  in the  joint property  partitioned off  for him, there is  no presumption  that the  rest of  the coparceners continued to  be joint. There is no presumption on the other side too  that because  one member  of the  family separated himself there  has been  separation with  regard to  all. It would be  a question  of fact  to be determined in each case upon the  evidence relating  to the intention of the parties whether there was a separation amongst the other coparceners or they  remained united.  Except that  four  sons  by  Nani remained under  one roof and were joint in food and laboured together there is no evidence that they agreed to constitute a coparcenary  assuming that a coparcenary a creature of law could be  created by  agreement. And  if Karappan  specified even the share of each of his sons by Nani in Ext. P-1, this evidence of  remaining  together  is  hardly  sufficient  to warrant a  conclusion that  these four  sons  constituted  a coparcenary. Ext.  P-1 could  not support  such a conclusion and High  Court was in error in spelling out such conclusion from  Ext.P-1   overlooking  its  specific  direction  of  a specified share  of each  of his  sons and  liability to pay owelty.      A  further   submission  that   there   was   partition branchwise is  unknown  to  Mitakshara  law  and  is  wholly untenable. In  Mayne’s Hindu  Law, 11th Edn., p. 347, law as thus stated:           "So long  as a family remains an undivided family,      two or  more members  of it, whether they be members of      different branches or of one and the same branch of the      family, can  have no  legal  existence  as  a  separate      independent unit;  but all  the members of a branch, or      of a sub-branch, 1149      can form  a distinct and separate corporate unit within      the larger  corporate family and hold property as such.      Such property  will be  joint family  property  of  the      members of  the branch  inter se,  but will be separate      property of  that branch  in  relation  to  the  larger      family.           The principle of joint tenancy is unknown to Hindu      law except  in the  case of  the joint  property of  an      undivided Hindu family governed by the Mitakshara law."      In Bhagwan  Dayal’s case  (supra) legal  position after referring to earlier decisions has been culled out as under:           "Coparcenary is a creature of Hindu law and cannot      be created  by agreement  of parties except in the case      of re-union.  It is  a corporate body or a family unit.      The law  also recognizes  a branch  of the  family as a      subordinate  cooperate  body.  The  said  family  unit,      whether the  larger one  or the  subordinate  one,  can      acquire, hold and dispose of family property subject to      the limitations  laid down  by law...Hindu law does not      recognise  some  of  the  members  of  a  joint  family      belonging to  different branches,  or even  to a single      branch, as a corporate unit."      Now, if  five  sons  of  Karappan  each  constituted  a branch, obviously after one son as a branch separated unless a  reunion  is  pleaded,  other  four  cannot  constitute  a corporate body  like a  coparcenary by  agreement or even by subsequent  conduct   of  remaining  together  enjoying  the property together.  In Balkishen  Das &  Ors. v.  Ram Narain Sahu &  Ors., an  ikrarnama was  produced which  showed that defined shares  in the whole estate had been allotted to the several coparceners.  There was a passage which gave liberty to any of the parties either to live together as a member of the joint  family or  to separate  his own business. Mahabir

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was given  four annas share and others defined shares in the remainder.  Contention   raised  was   that  Mahabir   alone separated and  others remained joint. Subsequent conduct was relied  upon   to  substantiate  the  contention  that  they remained together.  Negativing this  contention it  was held that the  ikrarnama effected  a separation of estate even if the parties  elected either  to have  a partition  of  their shares by  metes and bounds, or to continue to live together and enjoy  their property  in common as before. Whether they did one or the other would affect the mode of enjoyment, but not the  tenure of the property or their interest in it. The ikrarnama effected a separation in estate, its legal 1150 construction and  effect could  not be controlled or altered by the  subsequent conduct.  Once the shares were determined and allotted,  it was held consistently with Appovier’s case (supra) that  this converted  them from  joint holders  into tenants-in-common.      In Boddu  Venkatakrishna Rao & Ors. v. Boddu Satyavathi &  Ors.,  the  following  passage  in  Mulla’s  Transfer  of Property Act (Fifth Edn.), was approved:           "The principle  of joint  tenancy  appears  to  be      unknown to Hindu law, except in the case of coparcenary      between the members of an undivided family."      Once disruption  of joint  family status takes place as Lord Westbury  puts it in Appovier’s case, (supra) it covers both a  division of  right and  division of  property. If  a document clearly shows the division of rights and status its legal construction  and effect cannot be altered by evidence of subsequent conduct of parties.      Now, in  this case  Ext. P-1 itself specifies the share of each  member separately.  There is  no concept  known  to Hindu law  that there  could be  a branch  of a family wife- wise. To  illustrate, if a Hindu father has two wives and he has three  male children  by the  first wife  and two by the second, each wife constituting a branch with her children of the family  is a  concept foreign  to Hindu  law. Therefore, tavazhi wife-wise  stated in  Ext. P-1 has to be ignored and the contention  that there was a partition amongst wife-wise branches as  represented by  each wife is equally untenable. Ext. P-1  did bring about a specification of shares and once such shares  were defined by the father who had the power to define and  vesting the same there was a disruption of joint family. There  was thus a division of rights and division of property by  allotment of  shares.  The  mode  of  enjoyment immediately changed  and members of such family ceased to be coparceners holding  as  joint  tenants  but  they  held  as tenants-in-common. Subsequent  conduct of  some of  them  to stay together  in the absence of any evidence of re-union as understood in  law is  of no  consequence. In any event when Kesavan, the  son of  the second  wife, sought  and obtained physical partition  of the  properties allotted  to him  and left the  family there  being  no  evidence  whether  others agreed to  remain united  except the  so called  evidence of subsequent  conduct,   which  is   irrelevant   or   of   no consequence, disruption  of status  was complete. Therefore, the four sons of the first wife held the property as tenants in common.      There is evidence in the form of some documents showing that  defendant   1  was   described  as   Karnavaran  of  a coparcenary of the 1151 four sons  of the  first  wife  of  Karappan  and  that  the property was  enjoyed as a joint family property. In view of our  conclusion   that  such   subsequent  conduct   is  not

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conclusive of  any agreement to reunite, it is not necessary to examine the evidence.      In view  of our  conclusion that since the execution of Ext. P-1 on January 25, 1910, or after the death of Karappan in February  1910, when  Kesavan, the son of the second wife took his  share of  the property left the family there was a disruption of  the joint  family and the sons of Karappan by his first  wife held  the property,  which remained for them after Kesavan  obtained his  share, not as joint tenants but as tenants-in-common, the plaintiff would be entitled to the share to  which her  deceased husband  Raman  was  entitled. Raman had  1/4 share  in A  schedule  properties  which  the plaintiff would  be entitled and therefore, there would be a preliminary decree in her favour to that effect. Plaintiff’s claim to  a share in properties set out in schedules B and C annexed to  the plaint  has been  concurrently negatived  by both the  courts on the finding that they are the properties of defendant  1 and  his wife  and are not accretions to the property  which  devolved  from  Karappan.  This  concurrent finding of  fact arrived  at  on  appreciation  of  evidence appears to  be correct and need not be disturbed. Therefore, plaintiff’s suit  with regard to a share in B and C schedule properties has been rightly dismissed.      At the  commencement of  hearing of  the appeal  it was pointed out  that original  plaintiff Kallyani  is dead  and there is  some dispute between her two daughters Yashoda and Janaki about  succession to the estate of Kallyani. Both had applied to the exclusion of each other for being substituted as legal  representatives of  the deceased.  For purposes of this  appeal   both  were   substituted  for   the  deceased appellant. It  is not  necessary to  decide this question in this appeal because whoever of the two establishes her right to inherit the property of Kallyani would be entitled to the same but the dispute would be between Yashoda and Janaki and the other  defendants have  no right  to be  heard  in  that matter.      Accordingly this  appeal  succeeds  and  it  is  partly allowed. The  judgment and decree of the trial Court and the High Court  dismissing the  plaintiff’s suit  in regard to A schedule property are set aside. Plaintiff’s suit is decreed and it  is declared that she has 1/4 share in properties set out in  schedule A  annexed to  the  plaint.  A  preliminary decree to  that effect shall be drawn. Defendant 1 shall pay the costs of the plaintiff throughout. S.R.                                 Appeal allowed in part. 1152