(1) This appeal is filed by the plaintiff against the decree and judgment of the learned District Judge, Tirunelveli, in A. S. 345 of 1960, which confirmed the decree and judgment of the learned District Munsif in O. S. 40 of 1960. The prior facts so far as they are necessary for the disposal of this appeal are briefly the following. One Muthiah Pillai died in 1933, leaving behind his widow Kanthimathi Ammal, the fourth defendant in the suit, three sons Veluyatha Pillai, Ambalavana Pillai and Nelliappa Pillai and two daughters. With the daughters we are not concerned. In 1941, Nelliappa Pillai, who was a minor, sued through his uncle and next friend in O. S. 35 of 1941 on the file of the Sub Court, Tirunelveli, for partition of the joint family properties set out in the various schedules to the plaint in that suit and for accounts. In that suit, he impleaded his brothers Ambalavana Pillai and Velayutha Pillai, his mother Kanthimathi Ammal and his sisters.
The learned Subordinate Judge passed a preliminary decree for partition declaring that the minor plaintiff and his two brothers were each entitled to one-third share in the joint family properties. It was also declared in the preliminary decree that certain properties shown in Sch. I to the plaint in that suit and which were situated in Kodaganallur would be allotted to the mother Kanthimathi Ammal in lieu of her maintenance and the maintenance of a minor daughter until the time of the final decree. The quantum of maintenance payable to the mother and the daughter and the marriage and jewel expenses for the daughter were all reserved, to be considered at the time of the passing of the final decree. Subsequent to the passing of the preliminary decree minor Nelliappa Pillai came of age and his next friend was discharged in due course. Then, Nelliappa Pillai filed an application I.A. 110 of 1944 on 7-7-1944 under O. XXXII, Rule 12 C.P.C. praying that he might be permitted to withdraw the suit, and the learned Subordinate Judge of Tirunelveli, dismissed the suit O. S. 35 of 1941, as not pressed. This happened in 1944.
(2) Thirteen years later, Kanthimathi Ammal filed I.A. 278 of 1957 before the learned Subordinate Judge, Tirunelveli under O. XXVI, Rules 13 and 14 C.P.C., for restoring the partition suit to file and to appoint a Commissioner and divide the properties by metes and bounds as per the preliminary decree. She alleged that Nelliappa Pillai had dies in 1945, unmarried, that Ambalavana Pillai, the second son, had not been heard of for the past ten years and that as a result, she was entitled to the two-third share of Nelliappa and Ambalavana, in the family properties, as the heir of her two sons. The third son Velayutha strenuously contested the application. He pleaded that the preliminary decree was not carried into effect and there was a re-union as the plaintiff had abandoned the suit and lived as a member of the joint family. He also pleaded that the order of the court passed on 6-7-1944, dismissing the suit on the application of Nellayyappa on attaining majority was binding on all the parties including Kanthimathi Ammal and she was precluded from filing the application. The learned Subordinate Judge in an elaborate order canvassed several authorities, in regard to the effect of an application of a minor on attainment of age praying for the dismissal of the suit filed under O. XXXII, Rule 12 C.P.C. But the court relied for its decision, however, on the fact that the dismissal of the suit on the minor's petition was binding on the mother, who was a party to it, and she could not treat it as a nullity. The court also commented on the long delay of 13 years in filing the petition, and therefore, held that the delay would also be a ground for rejecting the application.
(3) Thereafter, Velayudham Pillai sold the properties mentioned in the schedule to the plaint in O.S. 40 of 1960, one of the items of the joint family properties, by a registered sale deed on 25-7-1957 to the plaintiff Nabisha Begum. The contention of the plaintiff was that Velayudha Pillai was entitled to ignore the prior partition suit filed at the instance of the minor, which had been dismissed in the circumstances mentioned above, and that he was the full owner of the property and that, therefore, the plaintiff got the full ownership under the alienation from Velayutham. Kanthimathi Ammal was the 4th defendant, and she was the main contesting defendant, the other three defendants being only lessees. She attacked the sale deed as fraudulent and without proper consideration. The more important contention on her behalf was that the minor's prior suit O. S. 35 of 1941 in fact brought about a division in the status among the different members of the joint family, and there was no subsequent re-union among the members. As a result of this, the two-third share belonging to the deceased Nelliappa and Ambalavana, who is civilly dead devolved on her. Therefore, the relief of the plaintiff would be one for general partition in which plaintiff could claim only an equitable relief in regard to Velayutham's share in the plaint schedule property, but the present suit was not maintainable. Both the courts below upheld the plea of the 4th defendant and dismissed the suit as well as the appeal. Again, the plaintiff has filed this second appeal.
(4) Learned counsel Sri K. Rajah Iyer, appearing for the appellant-plaintiff, urged that the courts below had entirely misconstrued the provisions of law applicable to the facts of this case and that, therefore, the plaintiff's suit should have been decreed as prayed for. I will now refer to the points urged before me in this connection. The first point for consideration is the scope of a suit for partition filed by the next friend of a minor. Mayne in his Hindu Law at page 554, 11th Edn., referred to the earlier conflict in the decisions on the question whether the institution of a suit for partition by the next friend of a minor effects a severance in interests so as to make the minor coparcener divided in status from the other members of the coparcenary. One view, expressed by the Full Bench of this court in Rangasayi v. Nagarthnamma, ILR 57 Mad 95: (AIR 1933 Mad 890 (FB)) was that in such cases, the severance is effected from the date of suit, conditional on the court being able to find that the suit when filed was for the benefit of the minor; and if a minor dies pending the suit, his legal representative can bring himself on record and continue the suit for partition subject to the decision of the court on the question whether the suit, when instituted, was for the benefit of the minor. Bombay, Patna and Nagpur High Courts followed the same view. But the Allahabad High Court, following an earlier decision of this court in Chelimi Chetti v. Subbamma, ILR 41 Mad 442: (AIR 1918 Mad 379), held that the institution of a suit by the next friend of a minor, has not the same effect as the institution of a similar suit by an adult member of the family, and that separation only takes place when the suit is decreed. A similar view was held by the Lahore High Court. While expressing his opinion that the view of the Madras High Court Full Bench was more logical, the learned commentator in Mayne's Hindu law expressed difficulty in accepting the view that where a minor dies before the court decides that the suit is for his benefit, a legal representative of the minor, who can come in only if the minor has become separated in interest, is entitled to continue the suit for his or her own benefit; for, " there could be no benefit to the minor when he is dead." But this conflict of authority as well as the above difficulty have been settled by the Supreme Court in Pedasubbayya v. Akkamma, . The principles laid down by the Supreme
Court are important and they are briefly summarised below:
(1) Every coparcener has got a right to become divided at his own will and option whether the other coparceners agree to it or not; a division in status takes place when he expresses his intention to become separate unequivocally and unambiguously; the filing of a suit for partition is a clear expression of such an intention, and, in consequence, there is a severance in status when the action for partition is filed. The logical result of this view is states by Viscount Haldane in Kawal Nain v. Budh Singh, 33 Mad LJ 42: (AIR 1917 PC 39):
"A decree may be necessary for working out the result of the severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether he obtains a consequential judgment or not."
(2) The law thus being settled as regards coparceners who are sui juris, the next question is whether it operates differently when the coparcener, who institutes the suit, for partition is a minor acting through his next friend. It has been long settled by authority in India that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as the one filed by an adult coparcener, with this difference, that when the plaintiff is a minor, the court has to be satisfied that the action has been instituted for his benefit.
(3) When a court decides that a suit for partition is beneficial to the minor, it does not itself bring about a division in status. The Court is not in the position of a super-guardian of a minor expressing on his behalf an intention to become divided. That intention is, in fact, expressed by some other person, and the function which the court exercises, is merely to decide whether that other person has acted in the best interests of the minor, in expressing on his behalf, an intention to become divided.
(4) The decision cleared the difficulty expressed in the commentary of Mayne and held that the action for a partition filed by a minor is not a personal action, which terminates with his death, but the relief can be availed of by his legal representative.
(5) It is implicit in the views thus expressed by the Supreme Court, that the filing of a suit for partition on the one hand and the severance in status, brought about in that process, by the unequivocal expression and communication of an intention to divide, whether by an adult coparcener or by the next friend of a minor on the other, are distinct concepts. The bringing about a severance in status by the communication of an intention by the minor's guardian followed by the approval of the court that it is beneficial for the minor need not necessarily take place in the course of a partition suit. In Ramaswami Chettiar v. Kuppa Chetti, , a Bench of this court
dealt with a suit filed by an alienee of an item of joint family property sold by the manager, the grandfather of a minor. The mother of the minor acting on his behalf, gave notice to the grandfather expressing the minor's intention to separate from the family, and demanding partition. When the alienee filed a suit for recovery of possession, the grandfather supported the case of the alienee. But the mother contested the suit on behalf of the minor, and urged that by virtue of the notice issued by her on behalf of the minor, division in status had been effected between the minor and his grandfather.
The learned Chief Justice, who delivered the judgment of the Bench, observed at p. 178 (of Mad LJ): (at p. 84 of AIR):
"Without effecting an actual partition a major coparcener has a right by a unilateral declaration on his part to effect a division in status in the family, so far as he is concerned. This right is incident to the right by birth which he has in the family properties. A minor coparcener would also have a similar right. By the very nature of it that right cannot be exercised in the same manner by him as by a major coparcener because a minor cannot be held to have a volition of his own. Therefore a guardian or next friend acting on his behalf is allowed to exercised a volition on behalf of the minor subject to this condition, namely, that such exercise or volition should be approved of by the court'. Neither the rule nor its reason indicates that the court should be one where a partition suit is pending' (Italics (here into ' ') mine). As we shall show presently the sanction of the court is sought only as the protector of the minor and not in any other capacity. Normally, the question whether a minor is divided from the joint family on the date of his notice would become relevant only in a suit for partition. But that does not mean that an issue relating to an anterior division in status cannot be considered in any other suit".
In the decision of a Bench of this court in Radhakrishna v. Satyanarayana, 1948-2 Mad LJ 331, at p. 341: (AIR 1949 Mad 173 at p. 181), there is reference to the P.C. Decision in Ramnarain Sahu v. Mt. Makhna, ILR 1939 All 680: (AIR 1939 PC 174). In that case, under a preliminary decree in a partition suit filed by a different coparcener, the two brothers, who were defendants, were allotted a joint share. One of them was a lunatic and was represented by his wife as his guardian. Before the actual division in pursuance of the preliminary decree, the wife, as guardian of her husband, applied to the trial Judge for separation of his share inter se between the two brothers. While the learned Subordinate Judge granted the prayer, the High Court in appeal, held that the Subordinate Judge had no power to vary the preliminary decree on the application of the lunatic's guardian. The High Court, however, directed that the effect of the application of the wife on behalf of here husband for bringing about a separation in status between the two brothers should be fought out in a separate suit. The following remarks of the Privy Council, before which the matter came up, are relevant for our purpose:
"The gap between preliminary and final decree is not seldom of considerable duration and the ordinary right of a coparcener to effect a separation of his estate, interest or title--as distinct from a partition by metes and bounds--by a proper declaration of his desire to sever, is not abrogated by the mere fact that he has not claimed to exercise it prior to the preliminary decree."
This decision is also important to show that the guardian of a minor (or a lunatic) can communicate the minor's intention to divide in status, even when appearing as a defendant in a suit, and it will bring about a division in status, if the court considers it beneficial to the minor.
(6) Throughout the judgment of this court in 1948-2 Mad LJ 331: (AIR 1949 Mad 173) the distinction between the filing of a partition suit, and the communication of an intention to become divided in status by a coparcener whether he be an adult, or a minor represented by his guardian, is also kept in mind. Thus at p. 343, (of Mad LJ): (at p. 183 of AIR), the learned Chief Justice observed:
"The mere claim for a partition need not necessarily imply a fixed determination and communication of an intention to divide the title and hold the property in severalty. It is merely a piece of conduct from which an inference for or against the expression of such an intention may be deduced according to the fact and circumstances of each case."
Again at page 344 (of Mad LJ): (at p. 184 of AIR), the learned Chief Justice observed:
"If there was no declaration of intention in the plaint and the matter had to be judged by the conduct in the suit, the fact that the claim for partition was withdrawn is a material element to be considered in inferring whether an intention to sever did or did not exist. The reference to the decision in Kedarnath v. Ratan Singh, ILR 32 All 415 (PC) can be justified only on that footing, as we have already shown that the question did not at all arise for consideration in that case. All that the plaint in such a suit would establish is that the coparcener entertained an intention to separate; but whether he had expressed such an intention in the plaint to become severed in status immediately and intended to convey that intention by that plaint to the other members is a different matter and has to be judged from the language of the plaint in each case."
Another important principle to which expression has been given in the decision aforesaid in 1948-2 Mad LJ 331,: (AIR 1949 Mad 173), is that when once there is proof that a coparcener (whether an adult or a minor through his guardian) has communicated his intention to divide unambiguously to other coparceners and severance of status has resulted thereupon, it is not open to him to withdraw the intention and nullify its effect so as to restore the family to its original joint status. There is no locus penitentiae for the person who has thus communicated his intention, after he has brought about the severance in status. The court pointed out:
"The reference to the two decisions in Girja Bai v. Sadashiv Dhundiraj, 31 Mad LJ 455: (AIR 1916 PC 104) and 33 Mad LJ 42: (AIR 1917 PC 39) makes it clear that their Lordships were fully alive to the principle that when once an intention is expressed and communicated, the status of the person is thereby affected which it is not possible to nullify or undo. Their Lordships also state at page 258,Palani Ammal v. Muthu Venkatachala, ILR 45 Mad 254: (AIR 1925 PC 49) that when once a joint Hindu family separates, the family or any of its members may agree to reunite as a joint Hindu family, but that is of rare occurrence and it requires strict proof to establish the same. "This is the only mode by which to a limited extent the effect of a division can be got rid of'." (Italics (here into ' ') mine) Therefore, after there has been an expression and communication of the intention to divide by one coparcener to other coparceners, with the consequent severance in status, any unilateral act of the person (who had expressed his intention and communicated it) to withdraw, cannot alter the affect of the division and convert the status of the other coparceners from a joint to a divided one. The original position can be restored only by a reunion involving a consensus of all the coparceners.
It appears to me that the principle thus laid down will apply with even greater force when the communication of the intention of the coparcener to divide in status expressed in the form of the filing of a partition suit has been followed by the passing of a preliminary decree, which, besides giving approval of the court to the action of the guardian in expressing an intention on behalf of the minor to become divided in status, on the finding that it is beneficial to him, has also accepted the severance in status inter se between all the coparceners, and freed their respective shares in the joint family property. The position thereafter is that even if the plaintiff wants to withdraw from further proceedings for passing the final decree, any one of the other defendants can come forward as plaintiff and press for the passing of a final decree. Assuming further, that for some reason, for example, long delay in applying for the final decree, the proceedings for passing the final decree in the suit itself may be held to be barred (to this point I shall come in greater detail when dealing with the plea of res judicata) the factum of severance in status brought about by the filing of the plaint and confirmed by the passing of the preliminary decree, cannot be undone, and the family's joint status cannot be restored, without reunion.
As to the binding force of a preliminary decree passing in such circumstances, one can press into the service two authoritative decisions. The Privy Council in Lachminarain Marwari v. Balmakund Marwari, 47 Mad LJ 441 at p. 446: (AIR 1924 PC 198 at p. 200), observed:
"After a decree has once been passed in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have, on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside. After a decree any party can (as already stated) apply to have it enforce."
In Venkatareddi v. Pethi Reddi, , it has been
observed:
"A preliminary decree pased, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees--a preliminary decree and a final decree--the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it.... S. 97 of the Code clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree."
A decision of the Andhra Pradesh High Court in Abdul Kareem v. Silar Saheb, Air 1957 Andh Pra 40 was cited by the learned counsel for the appellant. It contains the following observation:
"When a preliminary decree declaring a right to partition or the shares of the parties, has not been given effect to by the parties proceeding to partition in accordance with it and the property continues to be jointly held by the co-sharers, their right to partition continues. So long as they continue to be interested in the joint property as co-sharers, it is competent for them to bring a suit for declaration of their right and for partition in case their right to partition is denied or challenged. Such a suit is not barred by res judicata."
That decision dealt with a case of co-sharers of a Mohammadan family and it does not affect the question with which we are primarily concerned in this case, of the effect of a preliminary decree in a partition suit, which crystallised the shared of the different members of a Hindu coparcenary, after the expression of the intention of the plaintiff, has brought severance in status.
(7) It would thus appear in the light of the foregoing principles, when we apply them to the facts of this case, that the filing of the suit for partition by the guardian of Nelliappa, had the effect of bringing about a division in status among all the coparceners of the joint family, that it was approved by the court, as beneficial to Nelliappa, and the result was crystallised in the preliminary decree which decreed that each coparcener would take one-third share in the family properties. Upto the present moment there has been no proof of a reunion. A plea of reunion was raised by Velayudha in I.A. 278 of 1957, when he resisted Kanthimathi's prayer for continuing the prior partition suit to the final decree stage. But the learned Subordinate Judge, while dismissing that I.A., did not give a finding on this question of reunion. I shall refer to this I.A., a little later when examining the plea of res judicata consequent on the decision of I.A. 278 of 1957. As a result of the foregoing, it must be held that Kanthimathi became entitled to the shares of Nelliappa and Ambalavana on the death of the former and on the civil death of the latter, both of which were events which took place subsequent to the preliminary decree in the partition suit.
(8) Now I came to the next point urged by the learned counsel Sri K. Rajah Iyer, for the appellant. It deals with Nelliappa's application under O. XXXII, Rule 12 C.P.C. for abandoning the further proceedings in the partition suit after the passing of the preliminary decree. His prayer was that he might be permitted to withdraw from the suit, and thereupon the court dismissed the suit as not pressed. According to Sri Rajah Iyer, this order of the court, had the effect of nullifying everything that happened in connection with the partition suit, including the filing of the plaint and the communication of the intention of the minor's guardian expressed on his behalf to effect a severance in status, as well as the subsequent approval by the court when passing the preliminary decree that such division was beneficial for the minor. I am unable to agree. In the first place, the discussion in the foregoing paragraphs shows that it is not necessary to merge the communication of an intention to divide on the part of a coparcener, whether adult or a minor, to the other coparceners, in the filing of a suit for partition, though they may take place at the same time. They can be viewed independently. When a partition suit is filed, one has to examine the plaint separately to find out whether the intention to divide was communicated by the factum of the filing of the plaint. If such a suit happens to be dismissed, the factum of communication of an intention to obtain severance of status whether simultaneous with the filing of that plaint or anterior to the plaint, has taken its own independent effect, and brought about a division in status, and this effect cannot be undone by the dismissal of the suit; it can be undone only by reunion. Therefore, if the minor's action under O. XXXII, Rule 12 C.P.C. expressing his intention to abandon the suit brings about the dismissal of the suit, it cannot undo the division in status that has already taken place, by the communication of his intention through a guardian to the other coparceners, followed by the approval by the court when the preliminary decree was passed.
A reference to O. XXXII, Rule 12 C.P.C. shows that it deals only with the election on the part of the minor-plaintiff on attaining majority that he would not proceed with the suit. The court does not at that stage look into the motives which actuate the minor for not proceeding, with the suit. By the mere fact of the minor's election to abandon the suit, it would not automatically follow that the minor had elected to give up the severance in status that had been brought about previously. For example, he might think that the division in status was advantageous, but for some reason not disclosed, he might not desire to proceed with the passing of the final decree. One can concede an instance where he might have agreed with the other coparceners to enjoy the property as a co-sharer, without actual division by metes and bounds. With such proposal, the other co-sharers might have concurred and all of them might have agreed not to press for a final decree. But the division in status brought about by the preliminary decree will remain unaffected. One can refer to O. XXXII, Rule 14 C.P.C. where a minor-plaintiff, on attaining majority, can get a suit instituted in his name by his next friend dismissed on the ground that it was unreasonable or improper. In such an application, there is room for the court to investigate the propriety of the action of the next friend in taking up the cause of the minor while filing the plaint. Whether in such a case the minor can repudiate division in status brought out by the action of the guardian in filing the suit for partition, on behalf of the minor need not be considered in the present case. It is sufficient to state that when the minor's prayer under O. XXXII, Rule 12 C.P.C. had been granted at the stage between the passing of the preliminary decree an the final decree in a partition suit and none of the other defendants elect to go on with proceedings for passing a final decree it only amounts to the dismissal of the suit in so far as it deals with the relief of partition by metes and bounds. Without further data, it cannot undo the division in status brought about by the filing of the plaint, and the court's approval of the guardian's action given while passing the preliminary decree.
Learned counsel Sri Rajah Iyer referred to a decision of the Mysore High Court under O. XXIII, Rule 1 C.P.C. which deals with an adult plaintiff withdrawing his suit with liberty to file a fresh suit. In such a case, the court has to give permission to the plaintiff, after examining whether there are sufficient grounds for the plaintiff to act in the manner he did. The Mysore High Court in Bhimangouda v. Sangappa Irappa Patil, AIR 1960 Mys. 178, followed the view of the Rangoon High Court in Ma Po v. A Bux, AIR 1925 Rang 118(2).
"Effect of an order for the withdrawal with leave under O. 23, Rule 1(2) is to restore the parties to the position in which they have stood if the suit had not been filed, and, therefore, plaintiff can include portions of his claim in the new suit though they were omitted in the first suit."
Obviously, the principles which apply in the case of O. XXIII, Rule 1 C.P.C., are quite different from those in the case of O. XXXII, Rule 12, and both these rules do not at all touch on the effect of division in status, in a coparcenery brought about by the filing of a partition suit which unequivocally expresses the intention of one coparcener, adult or minor, to divide from the other coparceners.
(9) Sri Rajah Iyer quoted certain English authorities, which, according to him, constitute the basis of the principles outlined in O. XXXII, Rule 12 C.P.C. They deal with the abandonment by an infant of a suit filed for his benefit by a guardian. The authorities are: Dun v. Dunn, (1855) 44 ER 10. At page 12, there is this observation:
"The infant, on coming of age, repudiated the suit, and that repudiation, as I think, related back to the commencement of the suit, overriding all that had been done in it."
This observation cannot be divorced from the context of the case before their Lordships, which related to the taking back of certain deeds, which had been brought to the court by the defendant, following upon repudiation of the suit by the plaintiff at whose instance the deeds had been brought to court. That decision has no application to the point at issue in this case.
In Daniell's Chancery Practice at pp. 107 and 108, it is observed:
"Where an action has been brought in the name of an infant, he may elect on his coming of age, whether he will proceed with it or not; if he goes on with it, all future proceedings may be carried on in his own name, and the record need not be amended or altered, but notice should be filed at the Central Office; he will also be liable to all the costs of the action in the same manner as he would have been had he been of age when the action was originally brought; if he chooses to abandon it, he may obtain an order, on motion of course, or on petition of course, to dismiss it on payment of costs by himself; or he may refrain from taking any step in it: but he cannot compel the next friend to pay the costs unless it be established that the action was improperly brought." These observations also do not touch upon the specific question we have to deal with in this case, namely, the problem of severance in status of a coparcener under the Hindu law, on the communication of an intention to become divided.
(10) The next point is the effect of the decision of the learned Subordinate Judge in I.A. 278 of 1957 dismissing the application of Kanthimathi Ammal to get a final decree passed in the prior partition suit. I have already referred to the order passed in the I.A. earlier and also the gist of the I.A. itself. The main point to note is that what was negatived in this I.A. was Kanthimathi Ammal's relief for getting a final decree passed in the partition suit, and the principal reasons which weighed with the Subordinate Judge for refusing to grant that relief were that (1) she was a party to the minor's I.A. for dismissal of the suit and at that stage she did not agitate her claim for passing a final decree and (2) her application was filed after 13 years, which was too long a period for the court to exercise its discretion and excuse the delay. What is significant is that, in the course of that I.A., Velayutha raised a plea that the preliminary decree was never carried into effect, that the members of the family continued to live together, that they regarded themselves as still being joint, that there was a reunion and that it was as a result of the reunion, that the plaintiff abandoned that suit and lived as a member of the joint family with his brother Velayutha till the date of his death. Had this plea of Velayutha been considered and a decision given in the prior I.A., it would have amounted to a decision on the factum of re-union, and it would have had the effect of nullifying the severance in status brought about by what was effectuated before the preliminary decree and by the preliminary decree. But the learned Subordinate Judge in the I.A. did not deal with the plea and gave no decision on it. The consequence of the order passed in the I.A. may be that Kanthimathi Ammal would not be able to get a division by metes and bounds by pursuing that remedy in the earlier partition suit. The fact will still remain that the three brothers became divided in status and were only co-sharers in the joint family property after the filing of the partition suit, and Kanthimathi Ammal could set up her rights in a two-third share in the family properties on the death of Nelliappa and the civil death of Ambalavana as their heirs. On this question, the decision in I.A. No. 278 of 1957 will not be re judicata. Therefore, I negative the plea of res judicata also urged on behalf of the appellant.
(11) In the result, the appeal fails and is dismissed with costs.
(Leave granted)
(12) Appeal dismissed.