Judgement Appeal from two judgments and decrees of the Judicial Commissioners (July 25, 1912) reversing an order (January 23, 1911) and a judgment and decree (April 8, 1911) of the District Judge of Nagpur. The appellant was the widow of one Harihar, a member of a joint Hindu family governed by the Benares school of the Mitakshara law. Under circumstances which appear from the judgment of their Lordships, Harihar in 1908 instituted a suit against the other members of the joint family for partition of the joint estate, and for the separate allotment to him of a one-third share thereof. The defendants (the respondents and one Dhundiraj, since deceased) by their written statement admitted the plaintiffs right to a partition and that he was entitled to a one-third share. On March 9, 1909, the suit came on for hearing before the District Judge, who recorded that the plaintiffs right to partition and the extent of his share were not denied ; he, however, adjourned the case for the attendance of the parties in order to determine how the actual partition should be effected. Further adjournments took place in order that the parties might come to an agreement. Meanwhile, on June 17, 1909, Harihar died, leaving his widow, the appellant, his sole heiress him surviving. The appellant applied that her name should be substituted as plaintiff, to which the defendants objected, contending that Harihars rights had passed to them by survivorship and that the suit had abated. The parties filed written statements alleging and denying, respectively, that Harihar had unequivocally communicated to the defendants his intention to separate, and issues were framed. On January 23, 1911, the District Judge directed that the appellants name should be substituted as plaintiff. He found that Harihar had before the suit signified to the defendants his unequivocal intention to separate, and held that he must be considered as separate in estate. The suit was heard on April 8, 1911, when the District Judge made a preliminary decree declaring the plaintiffs right to a one-third share and directing a partition. The order substituting the appellant and the subsequent decree were set aside upon appeal to the Court of the Judicial Commissioner. The learned judges agreed with the finding of fact that Harihar had communicated to the defendants in unequivocal terms his desire to convert his estate from a joint estate into an estate in severalty. The order substituting the appellant and the subsequent decree were set aside upon appeal to the Court of the Judicial Commissioner. The learned judges agreed with the finding of fact that Harihar had communicated to the defendants in unequivocal terms his desire to convert his estate from a joint estate into an estate in severalty. After considering the authorities they expressed their view of the law applicable as follows " Except in the special case of a father severing from his sons, partition of property unaided by the Court among the members of a joint Hindu family governed by the Mitakshara can only be effected by agreement among all the coparceners concerned whereby at least they declare their intention to separate..... That a declaration of such intention by any fraction of the coparcenary body, or the mere demand by any member for partition of his share, does not of itself disrupt the family estate or destroy the right of survivorship." April 6. Sir R. Finlay, K.C., and Dunne, for the appellant. There are concurrent findings that Harihar had unequivocally intimated to his co-sharers an intention to separate. A separation of estate and a termination of the joint status was thereupon effected, although it remained to partition the estate by metes and bounds. This was clearly laid down by the Board in Suraj Narain v. Ikbal Narain (( 1912) L. R. 40 Ind. Ap. 40, 45.), decided subsequently to the decree now appealed from. Even if the consent of all the co-sharers was necessary, the other members by the pleadings admitted that Harihar was entitled to partition. De Gruyther, K.C., and Parikh, for the respondents. A member of a Mitakshara joint Hindu family cannot break up the coparcenary merely by declaring his intention to separate. To effect a separation there must be either an agreement by all the members or a decree. The decision of the Board in Pirthi Pal v. Jowahir Singh (( 1887) L. R. 14 Ind. Ap. 37, 55.) as to the right to mesne profits shows that a partition dates from the decree. The Board did not decide in Suraj Narain v. Ikbal Narain (( 1912) L. R. 40 Ind. Ap. 40, 45.) that a member could separate at his wish ; the contrary view was not argued. Ap. 37, 55.) as to the right to mesne profits shows that a partition dates from the decree. The Board did not decide in Suraj Narain v. Ikbal Narain (( 1912) L. R. 40 Ind. Ap. 40, 45.) that a member could separate at his wish ; the contrary view was not argued. The argument and the decision were that if that was the law an unequivocal intention had not been proved in that case. The filing of a suit has never been treated as effecting a partition. [Appovier v. Rama Sabba Aiyan (( 1866) 11 Moo. Ind. Ap. 71, 76, 78.) and Maynes Hindu Law, par. 270, were also referred to.] [Their Lordships, after consultation, intimated that they considered that the statement of the law in Suraj Narain v. Ikbal Narain (( 1912) L. R. 40 Ind. Ap. 40, 45.) was an authority binding upon the Board.] Accepting the proposition there laid down, there was in this case no more than an expression of a wish. Sir R. Finlay, K.C., replied. May 19. The judgment of their Lordships was delivered by MR. AMEER ALI. This appeal from two judgments and decrees of the Judicial Commissioners Court in the Central Provinces of India arises out of a suit brought by one Harihar, since deceased, on October 21, 1908, in the Court of the District Judge of Nagpur. The object of the suit was to obtain a declaration of his right to a one-third share in certain movable and immovable properties, which till then had been held as appertaining to a joint undivided Hindu family, of which he had been a member, a decree for partition, and other ancillary relief. Harihar died on June 17, 1909, during the pendency of his suit, and the question in the case is whether at the time of his death he was separated from the joint family. If he was, his share would be inherited by his widow Girja Bai, the appellant; if not, the defendants, respondents in this appeal, would take it by survivorship. The facts of the case are simple and may be stated briefly. Bapuji, the common ancestor, left several sons, among them Harihar, the plaintiff in this suit; two, Damoodur and Balaji, died many years ago without any issue. The facts of the case are simple and may be stated briefly. Bapuji, the common ancestor, left several sons, among them Harihar, the plaintiff in this suit; two, Damoodur and Balaji, died many years ago without any issue. Atmaram, the eldest, who became the manager of the family on Bapujis death, died in 1899, leaving Dhundiraj, the first defendant, the son of his brother Ram Chunder, whom he had taken in adoption. Dhundiraj became the manager after Atmarams death, and acted as such when this suit was instituted. He has since died, and he is now represented by his son Sadashiv. Ram Chunder died in 1902, leaving Nilkantha, his son, and two grandsons, all of whom are defendants in this action. Jageswar, another brother, died in 1906 without leaving any male issue. Thus, on October 21, 1908, when he brought his suit, Harihar was entitled to a one-third share of the joint property. It is alleged in the plaint that after Atmarams death " dissensions arose in the joint and undivided family/ and in consequence thereof two shops were set up at Parseoni, their place of residence, one in the name of Harihar, the other in that of Dhundiraj, and separate bahi-khattas (account-books) were opened in their respective names. The plaintiff further alleged that for " these reasons " he did not wish to continue as a member of the joint family ; that he had communicated his intention to the defendants ; and had, on October 1, 1908, served a registered notice on the first defendant, " the manager of the joint family,” and " as the defendants were collusively putting off partition and evading to give him his share he was obliged to bring this suit." The cause of action was stated to have arisen on October 1, 1908, when he demanded partition and his one-third share. The defendants admitted the plaintiffs claim, and added that in answer to the registered notice the first defendant had stated that he had no objection to a division of the estate which " should be made by private persons without going to Courts." They further urged that, as they were willing to divide the estate, the suit was premature, and that they should not be saddled with costs. What took place before the District Judge subsequent to the appearance of the defendants and the filing of their written statement appears clearly from the judgment of the Judicial Commissioners under appeal. The learned judges say " The defendants entered appearance on February 15, 1909, and on March 9, 1909, it was admitted on their behalf that the plaintiff was entitled to have a decree for partition of a one-third share. A to the property to be divided, after some controversy the parties were in agreement except in respect of certain movables. The District Judge, being desirous of consulting the parties regarding the best mode of carrying out the partition, adjourned the case for their personal attendance to May 4, 1909. On that date the case was put off to May 10, 1909, at the instance of the defendants, who sought a compromise. Then there was a further adjournment to June 20, 1909, upon the ground that the illness of defendant Dhundiraj had prevented negotiations for a compromise." On Harihars death on June 17, 1909, his widow, Girja Bai, the present appellant, applied for substitution as the heir and legal representative of her deceased husband, and then the contest began. The defendants objected to her substitution, on the ground that at the time of his death Harihar was an undivided member of a Hindu joint family, and that on his decease his share passed to them by survivorship. On January 23, 1911, the District Judge overruled their objections, and made the usual order for substitution in favour of the appellant. The case then proceeded to trial, and on April 8, 1911, a preliminary decree was made directing partition of the joint estate by commissioners appointed for the purpose. The defendants appealed to the Judicial Commissioners Court both from the order of January 23, 1911, directing the substitution of Girja Bais name in place of her deceased husband, and from the preliminary decree of April 8 following. The Judicial Commissioners in an elaborate and learned judgment have upheld the defendants contentions ; in substance the conclusion at which they have arrived amounts to this that no member of a joint undivided family under the law of the Mitakshara can separate himself from the joint family, or sever the status so far as he himself is concerned, without the consent of the others, or without an effective decree of the Court. The two following passages from the judgment of the Appellate Court will show that their Lordships apprehend correctly the decision of the learned Judicial Commissioners. In one place, dealing with Harihars action, they say " The defendants admitted what they could not deny, namely, that Harihar had a joint one-third share with themselves which he was entitled to have partitioned ; but to confess the existence of a coparcenary interest is not the same thing as even a passive consent to the severance of that interest; much less is it tantamount to an agreement to divide. The defendants never denied the title of Harihar, either before or after the suit, but they were all along averse to a partition, and, up to the day of his death, sought to compromise the suit by inducing him to abandon his desire to break up the joint estate. When he died the case stood adjourned in order that a compromise might be effected and, in the circumstances, the only compromise (once the share of Harihar and the estate to be divided had been admitted) which defendants could have sought was an abandonment of the partition. The pleadings merely indicate what had already taken place, namely, that Harihar had finally, decided to sever his estate, and had demanded that this should be done." And again "It remains therefore to decide whether, as claimed by the plaintiff, Harihar alone, despite the wishes of the other coparceners, could, by setting up an intention to separate followed by a demand for partition, convert his joint share into a tenancy in common, so as to destroy the defendants right of survivorship therein ; his title as coparcener and the extent of his share being admitted by the defendants. If this is the law, then the plaintiff must succeed. If, on the other hand, agreement between all the coparceners in pursuance of an intention to divide was necessary to cause the severance of interest claimed by the plaintiff, then the appeals of the defendants now before us must prevail." Their Lordships regret they cannot assent either to the inferences of law sought to be derived from the undisputed facts in the case, or to the principle on which the learned judges purport to base their judgment. Their Lordships think it necessary to refer again briefly to some of the circumstances with regard to which the Appellate Court appears to be under a misapprehension. As already stated, Atmaram the eldest brother, who, on Bapujis death, became manager, died in 1899. Disputes in the family, as Harihar alleged in his plaint, arose shortly after his death. On February 14, 1902, Harihar and Jageswar, who was alive at the time, wrote to Dhundiraj, who had become manager in his adoptive fathers place, intimating their wish to separate themselves from the joint family, and asking him to have a division of the family property made by arbitrators. Matters seem to have remained in a quiescent stage for the next six years, although Harihar alleged that two shops and business accounts had been opened in his and the first defendants separate names. Jageswar died in 1906, and on October 1, 1908, Harihar sent to Dhundiraj the registered letter already referred to. In that letter he says in explicit terms that his desire is to get partitioned his one-third share, and asks Dhundiraj to take the matter in hand " soon after the receipt of the letter " and to make a division of the joint estate, and adds, " but do not delay partition." On October 19 the defendant sends a reply through a pleader ; he first tries to persuade Harihar to abandon his intention of getting the joint estate divided, and then goes on to say "If you, nevertheless, intend to have a partition made, it is better you should yourself make it, since you are senior." And the mode in which this should be done is suggested. Harihar, evidently not satisfied with the delay that had taken place in the reply, brought his suit three days after the plaintiffs letter. Written statements were filed on February 15, 1909, and on March 9 following the District Judge recorded the following additional statement, as he calls it, by the defendants pleader " The defendants do not deny the plaintiffs right to claim one-third share in the joint family property, both movable and immovable. The plaintiffs suit is not premature, but he will not be entitled to his costs because we were ever willing to give him his share." The District Judges order made on that date is significant. The plaintiffs suit is not premature, but he will not be entitled to his costs because we were ever willing to give him his share." The District Judges order made on that date is significant. After stating that neither the plaintiffs right to claim partition nor the extent of his share is denied, he says " Under these circumstances, I think it necessary to have the parties before me in person, so that I may ascertain from them how the partition is to be effected." It appears to be absolutely clear that on March 9, 1909, the parties were of one mind on the question of partition. The plaintiff demanded a division of the joint family property. The defendants had agreed, perhaps at first unwillingly, to the demand, which they could not resist. The only question that remained for the Court to determine was the best mode of effecting the division. Their Lordships are unable to see on that date any disagreement or averseness in fact to the plaintiffs demand on the part of the defendants. All his acts subsequent to the registered notice evince a fixed determination to sever himself from the joint family. With reference to these acts the Judicial Commissioners say as follows Rao Bahadur Bapurao Dada, a well-known pleader of this Court, examined as the fourteenth witness for Harihars widow, has proved that Harihar refused all proposals to continue in a state of jointness after he had sent the letter of October 1, 1908 ; that he persisted in his demand for a share ; and that, his demand not being promptly complied with, he filed the present suit. He himself bought the stamp, and first asked Mr. Bapurao Dada, the family lawyer, to institute the litigation ; but finding him disinclined to do so, because he was engaged in mediating to bring about a compromise, Harihar had the plaint presented by another legal adviser, leaving Mr. Bapurao Dada to appear for the defendants." And they go on to say " Upon these facts we have no hesitation in coming to the conclusions 1. Bapurao Dada to appear for the defendants." And they go on to say " Upon these facts we have no hesitation in coming to the conclusions 1. That before filing the suit Harihar did in clear and unequivocal terms communicate to the defendants his earnest desire and his fixed intention to convert his estate from a joint estate into an estate in severalty." The learned judges, however, as already observed, held that this was not sufficient to constitute a severance of the joint status. In the case of Suraj Narain v. Ikbal Narain (L. R. 40 Ind. Ap. 40.) the rule of law applicable to cases of separation from the joint undivided family was laid down by their Lordships in the following terms " What may amount to a separation or what conduct on the part of some of the members may lead to disruption of the joint undivided family, and convert a joint tenancy into a tenancy in common, must depend on the facts of each case. A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed." It would probably be enough for the determination of this appeal to say that nothing could be more unequivocal or more clearly expressed than the conduct of Harihar in indicating his intention to separate himself and enjoy his share in severalty by the notice of October 1, 1908, coupled with this suit, and that these acts amounted to a separation with all its legal consequences. But as the question of the effect on the joint status of such an intention has been raised in this case in a direct and concrete form, their Lordships think it fit to discuss the principle somewhat more fully than was necessary in Suraj Narain v. Ikbal Narain. (L. R. 40 Ind. Ap. 40.) In Hindu law, " partition " does not mean simply division of property into specific shares ; it covers, as pointed out by Lord Westbury in Appoviers Case (11 Moo. Ind. Ap. (L. R. 40 Ind. Ap. 40.) In Hindu law, " partition " does not mean simply division of property into specific shares ; it covers, as pointed out by Lord Westbury in Appoviers Case (11 Moo. Ind. Ap. 71, 76, 78.), both " division of title and division of property." In the Mitakshara, Vijnaneswara defines the word " vibhaga," which is usually rendered into English by the word " partition," as the " adjustment of divers rights regarding the whole by distributing them in particular portions of the aggregate." Mitra Misra explains in the Viromitrodaya the meaning of this passage he shows that the definition of Vijnaneswara does not mean exclusively the division of property into specific shares as alone giving right to property, but includes the ascertainment of the respctive rights of the individuals, who claim the heritage jointly. He says (Sarkars translation, ch. i., s. 36) " For partition is made of that in which proprietary right has already arisen, consequently partition cannot properly be set forth as a means of proprietary right. Indeed, what is effected by partition is only the adjustment of the proprietary right into specific shares." The Viromitrodaya is a commentary on the Mitakshara, the value and importance of which have been repeatedly recognized by the Board. So far as their Lordships are aware, nowhere in the Mitakshara is it stated that agreement between all the coparceners is essential to the disruption of the joint status or that the severance of rights can only be brought about by the actual division and distribution of the property held jointly. If this were so and there were minors in a joint undivided family, partition would be impossible until they had all attained majority, a position which is expressly combated and negatived in the Viromitrodaya (ch. ii., s. 23). In fact later writers leave no room for doubt that " separation," which means the severance of the status of jointness, is a matter of individual volition. For example, Nilkantha, the author of the Vyavahara Mayukha (ch. iv., s. 3, Mandliks translation, p. 38), expressly lays down that " even when there is a total absence of common property a partition is effected by the mere declaration I am separate from thee, for partition is a particular condition of the mind, and the declaration is indicative of the same." The Sarasvati-Vilasa gives expression to the same view. iv., s. 3, Mandliks translation, p. 38), expressly lays down that " even when there is a total absence of common property a partition is effected by the mere declaration I am separate from thee, for partition is a particular condition of the mind, and the declaration is indicative of the same." The Sarasvati-Vilasa gives expression to the same view. After quoting the definitions of various earlier writers, it says " from this it is known that without any formality partition can be effected by mere intention ; " (Sutlers translation of Hindu Law Books on Inheritance, p. 122). Their Lordships are aware that the Vyavahara Mayukha is not recognized as an authority in the Benares school; they refer, however, to the dictum of Nilkantha as showing the general conception of Hindu jurists on the subject of severance from jointness. But the following gloss in the Viromitrodaya appears to their Lordships conclusive on the rule of law under the Mitakshara. " Here again," it says, " partition at the desire of the sons," which expression includes grandsons and great-grandsons (see ch. ii., s. 23a), " whether in the lifetime of the father or after his demise, may take place by the choice of a single coparcener, since there is no distinction." Their Lordships do not think it necessary to examine further the law as laid down in the texts. They propose to refer shortly to the cases which establish clearly that separation from the joint family involving the severance of the joint status so far as the separating member is concerned, with all the legal consequences resulting therefrom, is quite distinct from the de facto division into specific shares of the property held until then jointly. 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. In Madho Parshad v. Mehrban Singh (( 1890) L. R. 17 Ind. Ap. 194.) Lord Watson, delivering the judgment of this Board, declared in explicit terms the nature of the right possessed by individual members of a joint and undivided Hindu family. " Any one of several members of a joint family," he said, " is entitled to require partition of ancestral property, and his demand to that effect, if not complied with, can be enforced by legal process." Partition does not give him a title or create a title in him ; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers. Lord Watson makes this perfectly clear in the passage that follows "So long as his interest is indefinite, he is not in a position to dispose of it at his own hand and for his purposes ; but as soon as partition is made he becomes the sole owner of his share, and has the same powers of disposal as if it had been his acquired property." In this connection their Lordships desire to refer to the language used by that distinguished Hindu judge, Mitter J., in Deo Bunsee Koer v. Dwarkanath (( 1868) 10 Suth. W. R. 273.), a Mitakshara case. " Now it is a settled doctrine of the Hindu law," said that learned judge, " that every member of a joint undivided family has an indefeasible right to demand a partition of his own share. W. R. 273.), a Mitakshara case. " Now it is a settled doctrine of the Hindu law," said that learned judge, " that every member of a joint undivided family has an indefeasible right to demand a partition of his own share. The other members of the family must submit to it whether they like it or not." It appears to their Lordships that the Appellate Court has in this case confused the two considerations to which reference has been made above, namely, the severance of status, which is a matter of individual volition, with the allotment of shares, which may be effected by different methods by private agreement, by arbitrators appointed by the parties, or, in the last resort, by the Court. In Appovier v. Rama Sabba Aiyan (11 Moo. Ind. Ap. 71, 75.) this Board had to deal with an argument based on a similar notion that a deed of division between the members of an undivided family " which speaks of a division having been agreed upon, to be thereafter made, of the property of that family, was ineffectual to convert the undivided property into divided property until it has been completed by an actual partition by metes and bounds/ Lord Westbury, delivering the judgment of the Board, pointed out that the argument advanced before their Lordships proceeded " upon error in confounding the division of title with the division of the subject to which the title is applied." Then, after stating " the true notion of an undivided family under Hindu law," he proceeds thus " But when the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with ; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided." And in another place he adds "it is necessary to bear in mind the twofold application of the word division. There may be a division of right, and there may be a division of property." Some of the Courts in India have supposed Lord Westburys expressions to imply that the severance of status can take place only by agreement. Their Lordships have no doubt that this is a mistaken view. The Board there was dealing with a case in which division of right had already taken place, as evidenced by the " deed of division." The right which each individual member had in this joint property did not spring from the deed or the agreement of the parties to which it gave expression ; the agreement only recognized existing rights in each individual member which he was entitled to assert at any time he liked. The intention to separate may be evinced 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. In Joy Narain Giri v. Grish Chunder Myti (( 1878) L. R. 5 Ind. Ap. 228.) their Lordships regarded the conduct of one of the two co-sharers who constituted the joint family " when he left the joint residence and withdrew himself from commensality as indicating a fixed determination henceforward to live separately from his cousin," and treated " the fact of his borrowing money for his maintenance, as well as 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 who it was alleged had separated himself, and not from the conduct or attitude of any other party. As early as 1867, shortly after the judgment of the Judicial Committee in Appoviers Case (11 Moo. Ind. Ap. 71.), Kemp J., one of the most eminent judges of the Calcutta High Court, sitting with Glover J., in Mussamat Vato Koer v. Rowshun Singh (( 1867 8 Suth. W. R. 82.), a case governed by the law of the Mitakshara, expressed himself thus on this question of separation " Taking then the admitted facts of the case before us, we find that Sohun did publicly and unequivocally by petition presented in Court declare his intention to become from that date divided in estate. W. R. 82.), a case governed by the law of the Mitakshara, expressed himself thus on this question of separation " Taking then the admitted facts of the case before us, 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 of 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, con stitute, in our judgment, a complete severance or partition." With that view of the law their Lordships entirely concur. 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. Their Lordships are accordingly of opinion that the decrees of the Judicial Commissioners should be reversed and those of the District Judge should be restored. The respondents must pay the costs of this appeal and of the appeals in the Judicial Commissioners Court. Their Lordships will humbly advise His Majesty accordingly.