Prabhu Singh brought a suit for partition against his father and other members of the family. The suit was dismissed on a technical ground. But to prevent further litigation Prabhu Singh was given 1/5 share in the property by the elders of the community.
But for revenue purpose father’s name was allowed to be recorded as the sole owner of the property.
Afterwards Prabhu Singh mortgaged 1/5 share to the predecessor of appellant Kawal Nain who brought the suit to recover the mortgage money against Prabhu Singh impleading his father Budh Singh and other members of the family.
The main defence was that Prabhu Singh was member of an undivided Mitakshara family and as such he was not competent to alienate his interest in the joint family property.
The Allahabad High Court dismissed the suit in appeal on the ground that the partition had not been affected between Prabhu Singh and his father and others as there was no document to support the partition nor fact of partition was mentioned in the mortgaged deed.
Then the plaintiff appealed to the Privy Council.
It was held by the Privy Council that the institution of the suit for partition by Prabhu Singh amounted to an unequivocal desire on his part for separation and affected his severance from the joint family. It was immaterial-in such a case whether the co- sharers assented and whether the suit was decreed or dismissed. A decree may be necessary only for working out the result of severance and the allotment of definite shares, but the status of the plaintiff in suit as separate in estate is brought about by assertion of his right to separate whether he attains a consequential judgment or not.