Case: Kakumanu Peda Subbayya Andanother Vs. Kakumanu Akkamma And Another

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. 13. 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 of 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 was the view taken in a Full Bench decision of the Madras High Court in ILR 57 Mad 95 : (AIR 1933 Mad 890 ) (D) wherein Ramesam, J., stated the position thus :"The 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 ILR 1939 Bom 256 : (AIR 1939 Bom 169 ) (E) and ILR (1947) Nag 848 : (AIR 1948 Nag 1) (F) and we agree with these decisions. 14. 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 parents 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 Halsburys Laws of England, Vol. XXI, page 216, para 478, it is stated as follows :"Infants have always been treated as specially under the protection of the Sovereign, who, as parents patriae, had the charge of the persons not capable of looking after themselves. This jurisdiction over infants was formerely 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." 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. 15. 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 ILR 57 Mad 95 : (AIR 1933 Mad 890 ) (FB) (D) at pages 137-138 (of ILR Mad) : (at p. 907 of AIR) and in ILR (1947) Nag 848 : (AIR 1948 Nag 1) (F) at page 871 (of ILR Nag) : (at p. 10 of AIR) and we are in agreement with it.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. On the first question, the contention of the appellants is that is the 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 misdirection3. 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 question that was pressed before us -whether the suit for partition abated by reason of the death of the minor before it was heard and decided9. 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 benefitIt 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 minorBut 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 ILR 57 Mad 95   : (AIR 1933 Mad 890  ) (FB) (D) at pages 137-138 (of ILR Mad) : (at p. 907 of AIR) and in ILR (1947) Nag 848 : (AIR 1948 Nag 1) (F) at page 871 (of ILR Nag) : (at p. 10 of AIR) and we are in agreement with it.