Case ID: 623

Judgment:
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 R.Ganapathy 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 1/2 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. 2	300	 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. 2	600. 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 Singh(3)	 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) A.I.R. 1936 Lah. (4) Mad. (5) I.L.R. (6) I.L.R. 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) I.L.R. (4) (1916) L.R. 43 I.A. 151. (5) (1912) L.R. 40 I.A. 40	45. 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) L.R. 44 I.A. 159. (2) Mad. (3) (1916) L.R. 43 I.A. 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) A.I.R. 1936 Lah. (4) A.I.R. 1935 Bom. (5) I.L.R. (6) A.I.R. 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) A.I.R. 1936 Lah. (2) All. (4) A.I.R. 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) L.R. 30 I.A. 139. : (2) (1903) L.R. 30 I.A. 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) I.L.R. (3) I.L.R. 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:
In a suit instituted on behalf of a Hindu minor for partition of the joint family properties	 the minor plaintiff died during the pendency of the suit and his mother as the legal representative was allowed to continue the suit as the second plaintiff	 and the suit was decreed as it was found that the defendants had been acting against the interests of the minor and that the suit for partition was therefore beneficial to him. It was contended for the appellants that the suit had abated by reason of the death of the minor before the suit was heard and before the Court could decide whether the institution of the suit was for his benefit. Held	 that when a suit is instituted by a person acting on behalf of a minor for the partition of the joint family properties	 a declaration made by him on behalf of the minor to become divided brings about a severance in status	 subject only to the decision of the Court that the action is beneficial to the minor. The true effect of the decision of the Court is not to create in the minor a right which he did not possess before but to recognise the right which had accrued to him when the action was instituted. Rangasayi vs Nagarathnamma	 Mad. 95	 Ramsingh vs Fakira	 I. L. R. and Mandilprasad vs Ramcharanlal	 I.L.R. 	 approved. Case law reviewed. Accordingly	 the suit did not abate and the legal represen tative was entitled to continue the suit and obtain a decree on showing that when the suit was instituted it was for the benefit of the minor. Held	 further	 that the suit did not abate on the ground either that the cause of action for a suit for partition by a minor was one personal to him	 because such a suit is one relating to property.