Judgement Appeal (No. 117 of 1925) from a decree of the High Court (October 4, 1922) varying a decree of the Subordinate Judge of Thana (December 21, 1920). The suit was instituted by the first respondent for partition of the property of a joint Hindu family of which he claimed to be a member. The facts appear from the judgment of the Judicial Committee. Law. Rep. 54 Ind. App. 413 ( 1926- 1927) Mukund Dharman Bhoir V. Balkrishna Padmanji 195 Upon the issues framed both Courts in India found concurrently that the property, with the exception of certain part with regard to which there was no further dispute, was joint and not self-acquired property, and that there had not been, as was alleged, a partition in 1891. The sole question arising upon the appeal was as to the validity and effect of a document executed in 1907 by Padman, the plaintiffs father. He was a defendant, but died before the trial. The document, the terms of which appear more fully from the present judgment, stated that neither Padman nor his heir had any interest in the property, and that Padmans brother Mukund (the first appellant) was full owner, except as to portions given to Padman by his father and by Mukund. The joint family after Padmans death consisted of Mukund and his three sons and the two sons of Padman. Both Courts held that the document was not binding upon the sons of Padman. They differed however as to its effect; the trial judge held that it operated only for the benefit of Mukunds branch, whereas the High Court held that if it was operative at all it enured for the benefit of all the coparceners. Dealing with the above question Pratt J. said " Padman having renounced his one-sixth share, the Subordinate Judge has taken the shares of his sons as being still one-sixth each. But this is opposed to the ruling of the Court that where an undivided coparcener renounces his share, that renunciation is not for the sole benefit of the coparcener to whom he renounces it, but for the benefit of the coparcenary see a similar case in Wasantrao v. Anandrao. (( 1904) 6 Bom. L. R. 925; affirmed by the Privy Council ( 1907) 9 Bom. L. R. 595.) . . . . (( 1904) 6 Bom. L. R. 925; affirmed by the Privy Council ( 1907) 9 Bom. L. R. 595.) . . . . We therefore think that the one-sixth share of Padman must be treated as having sunk into the whole coparcenary, and that the plaintiff and his brother are each entitled to half the share between them, so that the share of each will be one-fourth." With regard to the position of the present respondents Nos. 3 and 4, who were vendees of interests in the share of respectively Padmans sons, and of Padman, and had been joined during the suit, the learned judge said that they had a right to come in and take their shares in the partition upon payment of the Court fee. Marten J. delivered judgment to the same effect upon the assumption that the document was binding upon Padman himself, which question it was not necessary to determine. 1927. June 27, 28. De Gruyther K.C. and Parikh for the appellants. Sir George Lowndes K.C, and E. B. Raikes for respondents Nos. 3 and 4. The other respondents did not appear. July 18. The judgment of their Lordships was delivered by SIR LANCELOT SANDERSON. This is an appeal by Mukund Dharman Bhoir, Govind M. Bhoir, Ramchandra M. Bhoir and Harishchandra M. Bhoir, who were defendants Nos. 1 to 4 in the suit, against a judgment and decree of the High Court of Bombay dated October 4, 1922. The suit was brought by Balkrishna against the above mentioned first four defendants, Padman, defendant No. 5, who was the plaintiffs father, Malji, defendant No. 6, the plaintiffs brother, Sowari, defendant No. 7, the sister of Padman, and other defendants, whom it is not necessary to mention in detail. Krisnaji Ramchandra Lele and Jagunnath Raghunath Shet were added as defendants subsequently. Krisnaji had purchased from the plaintiffs, after the institution of the suit, a 20-pie share of the plaintiffs share in the property which was the subject-matter of the suit. Jagunnath had purchased Law. Rep. 54 Ind. App. 413 ( 1926- 1927) Mukund Dharman Bhoir V. Balkrishna Padmanji from Padman and Malji a 40-pie share of their share in the property. These two defendants, Krisnaji and Jagunnath, are the only respondents who have appeared on the hearing of this appeal. Jagunnath had purchased Law. Rep. 54 Ind. App. 413 ( 1926- 1927) Mukund Dharman Bhoir V. Balkrishna Padmanji from Padman and Malji a 40-pie share of their share in the property. These two defendants, Krisnaji and Jagunnath, are the only respondents who have appeared on the hearing of this appeal. The learned counsel, Sir G. Lowndes, who appeared for them, stated that in view of the fact that the only question argued before the Board was as to the amount of the shares of the plaintiff and his brother Malji, and having regard to the nature of the argument which was presented by the learned counsel for the appellants, his clients interests were fully protected, whichever way the appeal was decided. Sir G. Lowndes, however, intimated that he had prepared an argument upon the merits of the appeal, and was prepared to present it to the Board as amicus curiae if their Lordships so desired. Accordingly, the learned counsel was heard on the merits. The pedigree set out in the plaint shows the relationship of some of the parties hereinbefore mentioned, and is as follows— Bapu | | | | | | Shinwar Dhango Manglya Dharman Mahadu 1 2 3 4 (Died Rajo x Thama | without Deft, No. 8 | issue) | | |par Padman | Mukund Deft. Deft. No. 5 Sowari Deft. No. 1 | No. 7 | | | | | | Govind Ramchandra Harishchandr Balkrishna Malji Deft, No. 2 Deft, No. 3 a Plaintiff Deft. No. 6 Deft, No. 4 Padman, the defendant 5 and father of the plaintiff, was alive when the suit was instituted; he died during the pendency of the suit and before the learned Subordinate Judge delivered his judgment. The suit was brought by the plaintiff for partition of the property described in schedules A, B, and C of the plaint. The properties were alleged to be the joint properties of a joint Hindu family which had been formed by Dharman and his two sons, Mukund and Padman, and which was governed by the Bombay School of the Mitakshara Law. The property contained in schedule C was alleged by the defendant Sowari to have been given to her. The suit was dismissed so far as the property described in schedule C was concerned. The property contained in schedule C was alleged by the defendant Sowari to have been given to her. The suit was dismissed so far as the property described in schedule C was concerned. The High Court on appeal affirmed such dismissal, and no point in respect thereof was raised on the hearing of this appeal. The appeal thereof is confined to the property described in schedules A and B. The property in schedule A is that which the plaintiff alleged was in the possession of Mukund, Law. Rep. 54 Ind. App. 413 ( 1926- 1927) Mukund Dharman Bhoir V. Balkrishna Padmanji 197 defendant No. 1, and the property described in schedule B was alleged to have been in possession of Padman, defendant No. 5, the plaintiffs father. The defence of the appellants was threefold. In the first place, it was alleged that the property was not subject to partition, because there had been a prior partition in 1891 between Dharman and Mukund on the one hand, and Padman on the other. Secondly, it was urged that the property was not subject to partition because it was self-acquired property of Dharman and Mukund, the first defendant. Thirdly, it was urged that Padman and his two sons separated in interest by a document, which was called a release, and which was executed by Padman in the year 1907. No question arises before their Lordships as to the first and second of the above mentioned defences. The learned Subordinate Judge found that there was no partition in 1891, and that the property was not the self-acquired estate of Dharman and the first defendant (Mukund), but that it was the joint family property of them and Padman and their sons. These two findings were affirmed by the High Court on appeal, and the case was argued on behalf of the appellants before their Lordships on the assumption that these findings must be accepted. The only question, therefore, which their Lordships have to consider and decide is the third, which relates to the document executed by Padman in 1907. The facts, material to this point, are as follows— Padman apparently was an idle and vicious young man, of weak intellect; he was looked upon as a burden to his family and was regarded as incapable of assisting in the management of the family estate. The facts, material to this point, are as follows— Padman apparently was an idle and vicious young man, of weak intellect; he was looked upon as a burden to his family and was regarded as incapable of assisting in the management of the family estate. Accordingly, a part of the family estate was allotted to him as a provision for his maintenance, and he had to live separately from his father and brother. It is, however, found as a fact that Padman did not know that his father and Mukund had any property which was ancestral and in which he had an interest. He was not admitted into the confidence of either of them, and he did not know that the property which was allotted to him was part of the joint family estate. It appears that the father Dharman made a will in 1904. It has been found by the learned Subordinate Judge that the will was void in so far as it related to the ancestral property of the joint family, and did not affect the rights of the plaintiff or his brother Malji. In 1907, the document, to which reference has already been made, was executed by Padman. It is not necessary to set it out in detail, as its terms have been so fully discussed in the judgments of the Courts in India. It has been called a release. It is really more in the nature of a series of recitals or admissions that the whole of the property was the separately acquired property of his father Dharman, that Dharman had made a will, that by virtue of the same, Mukund (defendant No. 1) had become full owner of the property after his fathers death ; that Dharman had given Padman certain property during his lifetime, and that he had been living separately from his father and Mukund ; that Mukund had given him certain additional property in consequence of his poverty ; and, finally, the document stated that Padman and his heir had no interest in the movable and immovable property acquired by Mukund or Law. Rep. 54 Ind. App. 413 ( 1926- 1927) Mukund Dharman Bhoir V. Balkrishna Padmanji 198 his father, and that Mukund was the full owner of all the property except that which had been given to Padman. Rep. 54 Ind. App. 413 ( 1926- 1927) Mukund Dharman Bhoir V. Balkrishna Padmanji 198 his father, and that Mukund was the full owner of all the property except that which had been given to Padman. The learned Subordinate Judge held that the document was executed by Padman under the conviction that all the estate was the self acquisition of Dharman and Mukund, that he, Padman, had no interest in it by birth, and that he could not make any claim to the property, as it had been disposed of by his fathers will. He held that it was binding on Padman, who thereby released his one-sixth share in favour of Mukund, but it was not binding on his sons— namely, plaintiff and his brother Malji. He decided that the plaintiff and his brother Malji were each entitled to one-sixth of the family estate. Both the plaintiff and the defendants Nos. 1 to 4 appealed to the High Court. Pratt J. held that the document of 1907 did not proceed on the footing of benefit at all, but on the basis of an eleemosynary allowance to a man who was entitled to nothing, and that the plaintiff and his brother Malji did not lose their interests in the joint family property by reason of the so-called release. Marten J. did not decide that the so-called release was binding on Padman, but for the purpose of his judgment the learned judge was prepared to assume that it was so binding. The learned judges held that the whole of the property, including that in the possession of Padman, should be thrown into hotchpot and then divided between the surviving members (according to their respective shares), and that the release could not be treated as if one-sixth was taken out and had become the separate share of Mukund and as if the other members were entitled to divide the balance only. The result was that the High Court decreed that the defendants Nos. 1 to 4 should take one-half of the estate and that the plaintiff, his brother Malji and the alienees (namely, defendants Krisnaji and Jagunnath) should take the other half according to the shares mentioned in the judgment. It is clear that the whole of the property mentioned in schedule A and B must be treated as joint property of the family of which Padman and his sons were members. It is clear that the whole of the property mentioned in schedule A and B must be treated as joint property of the family of which Padman and his sons were members. Although Padman, in consequence of his habits and his incapacity, had to live separately, and although certain property was allotted to him for his maintenance, it has been found as a fact that such property was much less than what his one-third share would have been, and that there never was, in fact, any partition of the joint property before 1907. In their Lordships opinion the sole question is whether, by reason of the deed of 1907, Padman and his two sons were separated in status from the joint family and whether there was at that time a partition of the joint family estate. There is a twofold application of the word "division" in connection with a partition. In the first place, there is separation, which means the severance of the status of joint-ness. That is a matter of individual volition; and it must be shown that an intention to become divided has been clearly and unequivocally expressed, it may be by explicit declaration or by conduct. Secondly, there is the partition or division of the joint estate, comprising the allotment of shares, which may be effected by different methods. In their Lordships opinion the deed of 1907 does not operate either as a separation of status or as a partition of joint family property. The deed proceeded upon the basis that there was no joint family and no joint family property. The Law. Rep. 54 Ind. App. 413 ( 1926- 1927) Mukund Dharman Bhoir V. Balkrishna Padmanji 199 basis was that all the property, including that which was in Padmans possession, had been separately acquired, and that all the property except that in possession of Padman belonged to Mukund. Further, by the deed, Padman agreed not to contest the genuineness or the contents of his fathers will in consideration of the gift of certain property by Mukund. There is no suggestion in any part of the deed that the parties were proceeding upon the basis that there was a joint family of which they were members, or that they were taking part in a division of the joint family property. There is no suggestion in any part of the deed that the parties were proceeding upon the basis that there was a joint family of which they were members, or that they were taking part in a division of the joint family property. In their Lordships opinion this disposes of the appeal, for it has now been ascertained that the property in dispute was, in fact, joint family property, that there never was a separation or division of the joint family property, and the plaintiff being a member of the joint family has an indefeasible right to demand partition. Their Lordships are of opinion that the High Courts direction as to the division of the estate proceeded on a correct basis, and that the decree of the High Court in accordance therewith was rightly made. They will therefore humbly advise His Majesty that this appeal should be dismissed with costs.