1866 (11) TMI 1

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....e undivided property of the family of which the Appellant was a member, and which was originally an undivided family. The foundation of the defence to the Appellant's claim is an instrument, which we will call, for the present purpose, a deed of division, dated the 22nd of March, 1834. 2. Certain principles, or alleged rules of law, have been strongly contended for by the Appellant. One of them is, that if there be 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, that deed is ineffectual to convert the undivided property into divided property until it has been completed by an actual partition by metes and bounds. ....

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....been relied upon by the Appellant, we believe, upon an examination of them, that there is not to be found in any one, clearly and affirmatively, the doctrine contended for with reference to an agreement for the conversion of joint ownership into separate ownership, namely, that such agreement is of no effect to convert an undivided family into a divided family without an actual partition. 6. In the last case cited and relied upon by the Appellant, decided in the month of February, 1865, in the High Court at Madras; that Court refuses to assent to the doctrine that nothing short of an absolute partition by metes and bounds in the lifetime of the different members will make the shares of the property divided. 7. Undoubtedly their Lordsh....

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....perty, although, in some portions, that division of right was not intended to be followed up by an actual partition by metes and bounds, that being postponed till some future time when it would be convenient to make that partition. 11. The deed, after dealing with the villages that were intended at once to be the subject of an actual partition, proceeds thus:--" But inasmuch as it is not intended to divide now"-- What is the meaning of the words, " divide now?" Clearly, to make the same partition of the villages that follow as had previously been directed to be made of the villages which precede. " But inasmuch as it is not convenient to divide now our moiety of the villages" (then follows an enumeration of the villages), " we shall divi....

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....e find, therefore, a clear intention to subject the whole of the property to a division of interest, although it was not immediately to be perfected by an actual partition. 14. We have examined the whole of these papers with great anxiety and care ; we have been very much assisted by the arguments at the Bar ; and by the able manner in which the cases oh both sides have been prepared. We have no doubt of the true principle which is applicable to the matter, or of the legal effect of this deed of March, 1834. It operated in law as a conversion of the character of the property and an alteration of the title of the family, converting it from a joint to separate ownership, and we think the conclusion of law is correct, viz., that that is suf....