paper 1866. SRIMUT RAJAI MOOTTOO VIJAYA BODIA GOORO SAWMY PERIYA ODAYA TAVER v. KATAMA ZEMINDAR OF SHIVA- character to the instrument, a suit founded upon an allegation wholly contradicting what he had stated to this Court of Justice, and insisting upon this as being a valid Will and testament. It is impossible that any such suit should be allowed to proceed. In RAGANADHA the first place, it is clear, upon the former record, that the Appellant had then the power of relying upon that document as being a valid Will. He in effect stated, or might have stated, his defence in the suits of 1856 in the alternative. He might, first, have insisted that it was an undivided property, and NATCHIAR, that, therefore, the Plaintiff in those suits had no interest therein; and, secondly, he might have pleaded, but if it shall turn out to be a divided. property, then my title arises under this instrument, and I plead and rely upon it as amounting to a valid devise in my favour. When a Plaintiff claims an estate, and the Defendant, being in possession, resists that claim, he is bound to resist it upon all the grounds that it is possible for him, according to his knowledge, then to bring forward. The present Appellant might have insisted on the validity of the alleged Will; but instead of doing so when his suit came on to be heard and decided in the Court of final appeal, he in effect disclaimed all title under the instrument as a Will, and insisted that it must be regarded by the Court as not being testamentary. There would be an end to all security in the administration of justice if the course now taken by the Appellant of setting up the Will, were allowed. On every ground, therefore,-first, on the general ground that the thing was in issue, and that what was in issue must be taken to have been decided by the judgment; secondly, upon the personal ground that the Appellant having used this document and VO L. XI Ꭻ 1866. SRIMUT RAJAH MOOTTOO VIJAYA abandoned all right to it as a Will, cannot now use it for a different purpose; we are of opinion, that there is no doubt as to the correctness of the determination of the Court below. We regard this suit, RAGANADILA in which the present appeal is brought, as a suit instituted without bona fides, and directly contrary to what the Appellant must be considered to be bound by; and we have no hesitation, therefore, in advising Her Majesty to affirm the decree, and to direct that this appeal be dismissed, with costs. BODHA GOO ROO SAWMY PERIYA ODAYA TAVER v. KATAMA NATCHLAR, ZEMINDAR OF SHIVA GUNGA. Sir R. Palmer.-It may be a satisfaction to your Lordships to know that what Sir Hugh Cairns did at the Bar was a mere repetition of what had been done in the printed answer to the appeal by the Respondent in India, and your Lordships will find it at p. 218, par. 39 of the Record of the appeal in 1863, which runs thus:-"In opposition to par. 64 of appeal petition, Respondent submits that the correspondence which passed at the time shows that the Government authorities did acknowledge the prima facie right of the Respondent's grandfather, and that the Civil Court was correct in terming the Will a mere declaration of right. It is only necessary to refer to Reg. V. of 1829 to perceive that it could not possibly be more, and that in quoting it the Government Officers could only have viewed it in that light, and not as a bequest." Lord Westbury.-I am very glad that you have stated that, because it removes from the case any possibility of its being supposed that Sir Hugh Cairns either mistook or exceeded his instructions. Sir R. Palmer.-That was my motive for mentioning it. APPOVIER alias SEETARAMIER AND RAMA SUBBA AIYAN, VENKATARAÑA Appellant; AIYAN, ANANTAMMAL, ANNA AIYAN, Respondents. and ANANTANA RAIYANA AIYAN On appeal from the Sudder Dewanny Adawlut at Madras. * Nov., IN this case the suit was brought by the Appellant 16th, 17th in the Court of the Principal Sudder Ameen at Tinnevelly. The object of the suit was to establish his claim, as a member of an undivided Hindoo family, to a moiety by right of inheritance of the family * Present: Members of the Judicial Committee,-The Right Hon. Lord Westbury, the Right Hon. Sir James William Colvile, and the Right Hon. Sir Edward Vaughan Williams. Assessor-The Right Hon. Sir Lawrence Peel. According to the true an undivided constitution of Hindoo individual family, no member of the family, whilst it remains undi vided, can predicate of the joint and undivided property, that he has a certain definite share. The proceeds of undivided property must be brought to the common chest or purse, and there dealt with according to the modes of enjoyment by the members of the family. But if 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 each member has thenceforth a definite and certain share in the estate, which he may claim to receive and enjoy in severalty, although the property itself has not been actually severed and divided. Where, therefore, a deed of partition was made and executed by the members of an undivided famil,ydealing with and making actual parti tion of a portion of the joint estate, but leaving the remainder to be divided at a future period in the same manner; Held, by the Judicial Committee (affirming the judgment of the Courts below), that such deed, being a division of right, operated as a conversion of the tenancy and a change of status in the family, quoad the property specified, changing, as it were, the joint tenancy thereof into a tenancy in common; and by operation of law making the members of the previously undivided family a divided family, in respect of such property. 1866. 2. property, and to eject three of the Defendants (the APPOVIER present Respondents) from the three several divided RAMA SUBEA shares which they held of such property, under a deed of partition made in the year 1831, to which deed the Appellant was a party. AIYAN. The validity of the partition made in pursuance of this deed was the main question in the suit. The Appellant sought to invalidate it, principally on the ground that such deed of division being only partially acted on was, therefore, wholly void; that certain adoptions, by which three of the parceners became members of the family when undivided, were contrary to Hindoo law; that the Appellant was a minor at the date of that partition; and in the event of those points being decided in favour of the Appellant, he supported his claim to a moiety of the property by relying on a partition alleged to have been made in the year 1806, by the then members of the family. The Defendants to the plaint were fifty-nine in number, and the five Respondents were the firstnamed five Defendants; the rest of the Defendants were severally holders of mortgages, and other derivative and subordinate interest in the different shares taken by the parceners under the division made in 1834. The facts were these: The common ancestor of the Appellant, the third Respondent's husband, and of the fourth and fifth Respondents, was one Sitaramien, who died, leaving six sons. These sons formed an undivided family, consisting of six branches, who, after the death of Sitaramien, held and enjoyed the family property in common. In the year 1800, the family being then undivided 1866. 77 APPOVIER v. AIYAN and the first, second, and third sons of Sitaramien, the common ancestor, being dead, their three sons, together with the three surviving sons of Sitaramien, RAMA SUBEA came to a division of the family property, upon which the Appellant relied as the foundation of his claim. This transaction was held by the several Courts of Sudder Ameen, the Zillah, and the Sudder Dewanny, to have been a mere temporary arrangement, and not intended to be permanent, and its purpose being served, a reunion of the family ensued, after which the parceners continued to hold the property as an undivided family until the year 1830. On the 30th of September, 1830, a Kararnamah (agreement) was entered into by the then surviving members of the family, for a prospective division of the family villages at some future period, as might be agreed on, with joint cultivation and engagement thereof in the six equal shares in the meanwhile. Nothing, however, was done to carry out this intended division. At the date of this agreement, the Appellant was a minor, and a party to it by his Mother, as his guardian. On the 22nd of March, 1834, a further deed of division was executed between the parties to the deed of 1830, which the Appellant, being then of age, executed. By this partition the property was divided into six equal shares, which were separately allotted to the Appellant, and the first, second, and third Respondent, and the fathers of the fourth and fifth Respondents. On the 19th of November, 1855, the Appellant filed his plaint in the Court of the Principal Sudder Ameen of Tinnevelly, against the Respondents and others not parties to the appeal, stating the transac |