Appeal No 326 of 1955
1250 Appeal by special leave from the judgment and decree dated April 10 1953 of the Madras High Court in Second Appeal No 1815 of 1949 arising out of the judgment and decree dated January 28 1949 of the Court of Subordinate Judge Bapatla in A section No 188 of 1947 against the judgment and decree dated December 23 1946 of the District Munsif Ongole in O section No 139 of 1946
M C Setalvad Attorney General for India and RGanapathy Aiyar for the appellants
A V Viswanatha Sastri M R Rangaswami Aiyangar T section Venkataraman and K R Choudhury for the respondents
September 4
The Judgment of the Court was delivered by VENKATARAMA AIYAR J
This appeal arises out of a suit for partition of joint family properties instituted on April 2 1942 in the Court of the District Munsif Ongole on behalf of one Kakumanu Ramanna a minor of the age of about 2 12 years by his material grandfather Rangayya as his next friend
The first defendant is his father
The second and third defendants are the sons of the first defendant by his deceased first wife
The fourth defendant is the second wife of the first defendant and the mother of the plaintiff 
The fifth defendant is the daugther of the first defendant by the fourth defendant
In the plaint three grounds were put forward as to why the minor plaintiff should have partition 1 It was said that the mother of the plaintiff was ill treated and there was neglect to maintain her and her children
Both the District Munsif and the Subordinate Judge on appeal held that this had not been established and no further notice need be taken of it
2 It was then said that there had been a sale of the family properties to one Akkul Venkatasubba Reddi for Rs 2300 that there was no necessity for that sale and that its object was only to injure the plaintiff
That sale is dated May 9 1939
3 Lastly it was alleged that item 2 had been purchased on June 1 1938 and item 11 on June 14 1939 with joint family 1251 funds but that the sale deeds had been taken in the names of the second and third defendants with a view to diminish the assets available to the plaintiff
In addition to these allegations it was also stated in the plaint that the family was in good circumstances and that there were no debts owing by it
On June 20 1942 the defendants filed their written statements wherein they claimed that the purchase of items 2 and 11 had been made with the separate funds of the second and third defendants and that the joint family had no title to them
They further alleged that the family had debts to the extent of Rs 2600
Sometime in January 1943 the minor plaintiff died and his mother who was the fourth defendant was recorded as his legal representative and transposed as the second plaintiff
The suit was in the first instance decreed but on appeal the Subordinate Judge remanded the case for trial on certain issues
At the rehearing it as proved that the first plaintiff was born on December 20 1939
On that the District Munsif held that the sale of the family properties to Akkul Venkatasubba Reddi and the purchase of items 2 and II in the names of the second and third defendants having been anterior to the birth of the minor plaintiff no cause of action for partition could be founded thereon
The District Munsif also held on the evidence that the purchase of items 2 and 11 was not shown to have been made with separate funds and that therefore they belonged to the joint family and further that the family owed no debts and that the allegations contra in the statements were not made out
But he held however that this did not furnish a cause of action for partition
In the result he dismissed the suit
There was an appeal against this judgment to the Court of the Subordinate Judge of Bapatla who affirmed the findings of the District Munsif that items 2 and 11 belonged to the joint family and that there were no debts owing by it
But he also agreed with him that as the sale and purchases in question were prior to the birth of the minor plaintiff the suit for 159 1252 partition based thereon was not maintainable
He accordingly dismissed the appeal
The second plaintiff took the matter in second appeal to the High Court of Madras and that was heard by Satyanarayana Rao J who held that as the defendants had falsely claimed that items 2 and 11 were the separate properties of the second and third defendants their interest was adverse to that of the minor and that the suit for partition was clearly beneficial to him
He accordingly granted a preliminary decree for partition
The present appeal has been brought against it on leave granted by this Court under article 136
The learned Attorney General who appeared for the appellants advanced two contentions in support of the appeal 1 that there was a concurrent finding by both the courts below that the suit was not instituted for the benefit of the minor and that the High Court had no power to reverse it in second appeal and 2 that in any event as the minor plaintiff had died before the suit was heard and before the court could decide whether the institution of the suit was for his benefit the action abated and could not be continued by his mother as his legal representative
On the first question the contention of the appellants is that it is a pure question of fact whether the institution of a suit is for the benefit of a minor or not and that a finding of the courts below on that question is not liable to be interfered with in second appeal
But it must be observed that the finding of the Subordinate Judge was only that as the impugned sale and purchases were made before the minor plaintiff was born no cause of action for partition could be founded by him thereon and that in our opinion is a clear misdirection
The transactions in question were relied on by the minor plaintiff as showing that the defendants were acting adversely to him and that it was therefore to his benefit that there should be a partition
It is no doubt true that as the plaintiff was not born on the date of those transactions the defendants could not have entered into them with a view to injure him though even as to this it should be noted that in May and June 1253 1939 when the transactions were concluded the first plaintiff was in the womb and the first defendant admits knowledge of this in his evidence
But assuming that there was no intention to defeat the rights of the first plaintiff at the time when the transactions in question were entered into that does not conclude the matter
The real point for decision is whether the defendants were acting adversely to the minor and if after he was born they used documents which might have been innocent when they came into existence for the purpose of defeating his rights to the properties comprised therein that would be conduct hostile to him justifying partition
Now what are the facts  In the written statements which were filed shortly after the institution of the suit while the first plaintiff was alive defendants I to 3 combined to deny his title to items 2 and I 1 and at the trial they adduced evidence in support of their contention that they were the separate properties of defendants 2 and 3
Even in the Court of Appeal the defendants persisted in pressing this claim and further maintained that the joint family had debts and both the courts below had concurrently held against them on these issues
These are materials from which it could rightly be concluded that it was not to the interest of the minor to continue joint with the defendants and that it would be beneficial to him to decree partition
In holding that as the transactions in question had taken place prior to his birth the minor could not rely on them as furnishing a cause of action the courts below had misunderstood the real point for determination and that was a ground on which the High Court could interfere with their finding in second appeal
We accept the finding of the High Court that the suit was instituted for the benefit of the minor plaintiff and in that view we proceed to consider the second question raised by the learned Attorney General and that is the main ques tion that was pressed before us whether the suit for partition abated by reason of the death of the minor before it was heard and decided
The contention on behalf of the appellants is that while in the case of an adult coparcener a clear and 1254 unambiguous expression on his part of an intention to become divided will have the effect of bringing about a division in status and the filing of a suit for partition would amount to such an expression that rule can have no application in the case of a minor as under the law he is incapable of a volition of his own
It is conceded by the appellants that a suit for partition could be entertained on behalf of a minor plaintiff and decreed if the court decides that it is in the interests of the minor
But it is said that in such a case the court exercises on behalf of the minor a volition of which lie is incapable that it is not until that volition is exercised by the court that there can be a division in status and that therefore when a minor plaintiff dies before the court adjudicates on the question of benefit to him he dies an undivided coparcener and his interest survives to the other coparceners and does not devolve on his heirs by inheritance
The contention of the respondents on the other hand is that a suit for partition instituted on behalf of a minor coparcener stands on the same footing as a similar suit filed by an adult coparcener with this difference that if the suit is held by the court not to have been instituted for the benefit of the minor it is liable to be dismissed and no division in status can be held to result from such an action
In other words it is argued that a suit for partition on behalf of a minor effects a severance in status from the date of the suit conditional on the court holding that its institution is for the benefit of the minor
The question thus raised is one of considerable importance on which there has been divergence of judicial opinion
While the decisions in Chelimi Chetty vs Subbamma 1 Lalta Prasad vs Sri Mahadeoji Birajman Temple 2 and Hari Singh vs Pritam Singh3 hold that when a suit for partition is filed on behalf of a minor plaintiff there is a division in status only if and when the Court decides that it is for his benefit and passes a decree the decisions in Rangasayi vs Nagarathnamma 4 Ramsing vs Fakira 5 and Mandliprasad vs Ramcharanlal 6 lay down that when such a 1 442
2 All
3 AIR 1936 Lah
4 Mad
5 ILR 6 ILR 1255 suit is decreed the severance in status relates back to the date of the institution of the suit
While Chelimi Chetty vs Subbamma 1 decides that when a minor on whose behalf a suit is filed dies before hearing the action abates it was held in Rangasayi vs Nagarathnamma 2 and Mandliprasad vs Ramcharanlal 3 that such a suit does not abate by reason of the death of the minor before trial and that it is open to his legal representatives to continue the suit and satisfy the court that the institution of the suit was for the benefit of the minor in which case there would be a division in status from the date of the plaint and the interests of the minor in the joint family properties would devolve on his heirs
To decide which of these two views is the correct one we shall have to examine the nature of the right which a minor coparcener has to call for partition and of the power which the court has to decide whether the partition in question is beneficial to the minor or not
Under the Mitakshara law the right of a coparcener to share in the joint family properties arises on his birth and that right carries with it the right to be maintained out of those properties suitably to the status of the family so long as the family is joint and to have a partition and separate possession of his share should he make a demand for it
The view was at one time held that there could be no partition unless all the coparceners agreed to it or until a decree was passed in a suit for partition
But the question was finally settled by the decision of the Privy Council in Girja Bai vs Sadashiv Dhundiraj 4 wherein it was held on a review of the original texts and adopting the observation to that effect in Suraj Narain vs lqbal Narain 5 that every coparcener has got a right to become divided at his own will and option whether the other coparceners agree to it or not that a division in status takes place when he expresses his intention to become separate unequivocally avid unambiguously that the filing of a suit for partition is a clear expression of such an intention and that in consequence 1 Mad
2 Mad
3 ILR 4 1916 LR 43 IA 151
5 1912 LR 40 IA 4045
1256 there is a severance in status when the action for partition is filed
Following this view to its logical conclusion it was held by the Privy Council in Kawal Nain vs Prabhu Lal 1 that even if such a suit were to be dismissed that would not affect the division in status which must be held to have taken place when the action was instituted
Viscount Haldane observed 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 consequential judgment or not The law being thus settled as regards coparceners who are sui juris the question is whether it operates differently when the coparcener who institutes the suit for partition is a minor acting through his next friend
Now the Hindu law makes no distinction between a major coparcener and a minor coparcener so far as their rights to joint properties are concerned
A minor is equally with a major entitled to be suitably maintained out of the family properties and at partition his rights are precisely those of a major
Consistently with this position it has long been settled that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as 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
Vide the authorities cited in Rangasayi vs Nagarathnamma 2  at p 137
The course of the law may be said thus far to have had smooth run
But then came the decision in Girja Bai vs Sadashiv Dhundiraj 3 which finally established that a division in status takes place when there is an unambiguous declaration by a coparcener of his intention to separate and that the very institution of a suit for partition constituted the expression of such an intention
The question then arose how far this principle could be applied when the suit for partition was instituted not by a major but by a minor acting through his next friend
The view was expressed that 1 1917 LR 44 IA 159
2 Mad
3 1916 LR 43 IA 151
1257 as the minor had under the law no volition of his own  the rule in question had no application to him it was not however suggested that for that reason no suit for partition could be maintained on behalf of a minor for such a stand would be contrary to the law as laid down in a series of decisions and must if accepted expose the estate of the minor to the perils of waste and spoliation by coparceners acting adversely to him
But what was said was that when a court decides that a partition is for the benefit of a minor there is a division brought about by such decision and not otherwise
It would follow from this that if a minor died before the court decided the question of benefit lie would have died an undivided coparcener of his family and his heirs could not continue the action
In Chelimi Chetty vs Subbamma 1 the point directly arose for decision whether on the death of a minor plaintiff the suit for partition instituted on his behalf could be continued by his legal representatives
It was held that the rule that the institution of a suit for partition effected a severance of joint status was not applicable to a suit instituted on behalf of a minor and that when he died during the pendency of the suit his legal representative was not entitled to continue it
The ground of this decision was thus stated  It was strongly argued by the learned pleader for the respondent that as the plaint states facts and circumstances which if proved would be good justification for the court decreeing partition therefore at this stage we must proceed on the basis that there was a good cause of action and there was thus a severance of status effected by the institution of the suit
This clearly does not amount to anything more than this that it is open to a person who chooses to act on behalf of a minor member of a Hindu family to exercise the discretion on his behalf to effect a severance
What causes the severance of a joint Hindu family is not the existence of certain facts which would justify any member to ask for partition but it is the exercise of the option which the law lodges in a member of the joint family to say whether he shall continue to remain 1 Mad
1258 joint or whether he shall ask for a division
In the case of an adult he has not got to give any reasons why lie asks for partition but has simply to say that he wants partition and the court is bound to give him a decree
In the case of a minor the law gives the court the power to say whether there should be a division or not and we think that it will lead to considerable complications and difficulties if we are to say that other persons also have got the discretion to create a division in the family purporting to act on behalf of a minor
 This decision was cited with approval in Lalta Prasad vs
Sri Mahadeoji Birajman Temple 1 wherein it was observed  The effect therefore we think of an action brought by a minor through his next friend is not to create any alteration of status of the family because a minor cannot demand as of right a separation it is only granted in the discretion of the court when in the circumstances the action appears to be for the benefit of the minor
See Chelimi Chetty vs Subbamma 2
 In Hari Singh vs Pritam Singh 3 a suit for partition instituted on behalf of a minor was decreed the court finding that it was for the benefit of the minor
The question then arose as to the period for which the karta could be made liable to account
It was held following the decisions in Chelimi Chetty vs Subbamma 2  and Lalla Prasad vs Sri Mahadeoji Birajman Temple 1 that as the severance in status took place only on the date of the decision and not when the suit was instituted the liability to account arose only from the date of the decree and not from the date of the suit
It may be mentioned that in Chhotabhai vs Dadabhai 4 Divatia J quoted the decision in Chelimi Chetty vs Subbamma 2 with approval but as pointed out in Ramsing vs Fakira 5 and by the learned judge himself in Bammangouda vs Shankargouda 6 the point now under consideration did not really arise for decision in that case and the 1 All 461
2 Mad
3 AIR 1936 Lah
4 AIR 1935 Bom
5 ILR 6 AIR 1944 Bom
1259 observations were merely obiter
It is on the strength of the above authorities that the appellants contend that when the minor plaintiff died in January 1943 the suit for partition had abated and that his mother had no right to continue the suit as his heir
Now the ratio of the decision in Chelimi Chetty vs Subbamma 1 and it is this decision that was followed in Lalta Prasad s Case 2  Hari Singh vs Pritam Singh 3 and Chhotabhai vs Dadabhai 4 is that the power to bring about a division between a minor and his coparceners rests only with the court and not with any other person and that in our judgment is clearly erroneous
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 all 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 ail intention to become divided
The position will be clear when regard is had to what takes place when there is a partition outside court
In such a partition when a branch consisting of a father and his minor son becomes divided from the others the father acts on behalf of the minor son as well and the result of the partition is to effect a severance in status between the father and his minor son oil the one hand and the other coparceners on the other
In that case the intention of the minor to become separated from the coparceners other than his father is really expressed on his behalf by his father
But it may happen that there is a division between the father and his own minor son and in that case the minor would normally be represented by his mother or some other relation and a partition so entered into has been recognised to be valid and effective to bring about a severance in status
The minor has no doubt the right to have the partition set aside if it is shown to have been prejudicial to him but if that is not established the partition 1 Mad
3 AIR 1936 Lah
2 All
4 AIR 1935 BOM
160 1260 is binding on him
Vide Balkishen Das vs Ram Narain Sahu 1
And even when the partition is set aside on the ground that it is unfair the result will be not to annul the division in status created by the partition but to entitle the minor to a re allotment of the properties
It is immaterial that the minor was represented in the transaction not by a legal guardian but by a relation
It is true as held in Gharib Ul Lah vs Khalak Singh 2 that no guardian can be appointed with reference to the coparcenary properties of a minor member in a joint family because it is the karta that has under the law the right of management in respect of them and the right to represent the minor in transactions relating to them
But that is only when the family is joint and so where there is disruption of the joint status there can be no question of the right of a karta of a joint family as such to act on behalf of the minor and on the authorities a partition entered into on his behalf by a person other than his father or mother will be valid provided that person acts in the interests of and for the benefit of the minor
If under the law it is competent to a person other than the father or mother of a minor to act on his behalf and enter into a partition out of court so as to bind him is there any reason why that person should not be competent when he finds that the interests of the minor would best be served by a division and that the adult coparceners are not willing to effect a partition to file a suit for that purpose on behalf of the minor and why if the court finds that the action is beneficial to the minor the institution of the suit should not be held to be a proper declaration on behalf of the minor to become divided so as to cause a severance in status In our judgment when the law permits a person interested in a minor to act on his behalf any declaration to become divided made by him on behalf of the minor must be held to result in severance in status subject only to the court deciding whether it is beneficial to the minor and a suit instituted on his behalf if found to be beneficial must be held to bring about a division in status
That 1 1903 LR 30 IA 139
 2 1903 LR 30 IA 165
1261 was the view taken in a Full Bench decision of the Madras High Court in Rangasayi
vs Nagarathnamma 1 wherein Ramesam J stated the position thus  These instances show that the object of the issue whether the suit was for the benefit of the minor is really to remove the obstacle to the passing of the decree
It is no objection to the maintainability of the suit
In my opinion therefore in all such cases the severance is effected from the date of the suit conditional on the court being able to find that the suit when filed was for the benefit of the minor
 The same view has been taken in Ramsing vs Fakira 2 and Mandliprasad vs Ramcharanlal 3 and we agree with these decisions
On the conclusion reached above that it is the action of the person acting on behalf of a minor that brings about a division in status it is necessary to examine what the nature of the jurisdiction is which the courts exercise when they decide whether a suit is for the benefit of a minor or not
Now the theory is that the Sovereign as parens patriae has the power and is indeed under a duty to protect the interests of minors and that function has devolved on the courts
In the discharge of that function therefore they have the power to control all proceedings before them wherein minors are concerned
They can appoint their own officers to protect their interests and stay proceedings if they consider that they are vexatious
In Halsbury s Laws of England 3rd Edn Vol
XXI p 216 para
478 it is stated as follows  Infants have always been treated as specially under the protection of the Sovereign who as parens patriae had the charge of the persons not capable of looking after themselves
This jurisdiction over infants was formerly delegated to and exercised by the Lord Chancellor through him it passed to the Court of Chancery and is now vested in the Chancery Division of the High Court of Justice
It is independent of the question whether the infant has any property or not
 1 Mad
2 ILR 3 ILR 1262 It is in the exercise of this jurisdiction that courts require to be satisfied that the next friend of a minor has in instituting a suit for partition acted in his interest
When therefore the court decides that the suit has been instituted for the benefit of the minor and decrees partition it does so not by virtue of any rule special or peculiar to Hindu law but in the exercise of a jurisdiction which is inherent in it and which extends over all minors
The true effect of a decision of a court that the action is beneficial to the minor is not to create in the minor proprio vigore a right which he did not possess before but to recognise the right which had accrued to him when the person acting on his behalf instituted the action
Thus what brings about the severance in status is the action of the next friend in instituting the suit the decree of the court merely rendering it effective by deciding that what the next friend has done is for the benefit of the minor
It remains to consider one other argument advanced on behalf of the appellants
It was urged that the cause of action for a suit for partition by a minor was one personal to him and that on his death before hearing the suit must abate on the principle of the maxim actio personalis moritur cum persona
But that maxim has application only when the action is one for damages for a personal wrong and as a suit for partition is a suit for property the rule in question has no application to it
That was the view taken in Rangasayi vs Nagarathnamma 1 at pp
137 138 and in Mandliprasad vs Ramcharanlal 2 at p 871 and we are in agreement with it
All the contentions urged in support of the appeal have failed and the appeal is accordingly dismissed with costs
The amounts paid by the appellants to the respondents in pursuance of the order of this Court dated March 7 1958 will be taken into account in adjusting the rights of the parties under this decree
1 Mad
Appeal dismissed


Summary:
Under Rule 81a of the Defence Research  Development Service Rules 1970 Junior Scientific Officers in the Defence Research  Development Organisation were eligible for promotion to the posts of Scientists B  upto 50 per cent of the vacancies in the grade
The respondents who were holding the posts of Junior Scientific Officers and were promoted to the posts of Scientists B  with effect from October 16 1985 or from the date they actually assumed charge of the posts filed an application before the Central Administrative Tribunal contending that since the posts to which they had been promoted were created between 1984 and 1985 they should have been promoted with effect from July 1984 as was done on previous occasions upto 1983 when promotions were ef fected from 1st July of the year in which promotions took place
The Tribunal rejected the prayer of the respondents and directed that the promotions should be effective from the date on which the promotional posts were created
The Union of India being aggrieved appealed to the Court
On the question whether the Tribunal was justified in directing the promotions to be effective from the date the promotional posts were created
Allowing the appeal this Court HELD After a post fails vacant for any reason whatsoev er a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant
Similarly when additional posts are created promotions to those posts can be granted 752 only after the Assessment Board has met and made its recom mendations for promotions being granted
If however promo tions are directed to become effective from the date of creation of additional posts then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion
754C E In the instant case there is no statutory provision that the promotion to the post of Scientist B  should take effect from 1st July of the year in which the promotion is granted
There is also no law or rule under which a promo tion is effective from the date of creation of the promo tional posts
The Tribunal was therefore in error in holding that the promotions should be effective from the date the promotional posts were created
The orders of the appellants promoting respondents from October 16 1985 will stand
754B C  F