Case Summary
| Citation | Kakumanu Pedasubhayyav.Kakumanu Akkamma1959 SCR 1249, AIR 1958 SC 1042 |
| Keywords | Partition |
| Facts | In this case, Defendant were the father and his son from the 1st wife who were continously selling ancestral property and incurring debts without any legal necessity. Family property were sold by defendant and purchasing new ones in the name of adult coparcenor. Minor and other’s didn’t even getting their property or their right violating. Suit was filed on the behalf if minor who died during pendency of the suit by his maternal grandfather as his next friend. |
| Issues | Whether minor died as undivided member of the family? Whether the suit abated his death? |
| Contentions | |
| Law Points | The partition must be in the “Best interest of the Minor” even if it is filed by his next friend. There is no difference between the rights of minor and major coparcenor. When the suit was filed,it was deemed to be a separate property from that date. The difference between minor and major coparcenor is the interest of the minor on which court have to decide. Minor was considered to be a separate member from the date when the suit was filed. |
| Judgement | Court held that minor coparcenor has right in property and suit can be filed by his Guardian as his next friend and he was considered to be a separate member from the date on which suit was filed and at the time of his death. |
| Ratio Decidendi & Case Authority |
Full Case Details
T.L.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
KakumanuRamanna, a minor of the age of about 2½ years by his maternal 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 daughter of
the first defendant by the fourth defendant.
2. 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 AkkulVenkatasubbaReddi 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 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.
3. The suit was in the first instance decreed, but on appeal, the Subordinate Judge remanded
the case for trial on certain issues. At the re-hearing, it was 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
AkkulVenkatasubbaReddi and the purchase of Items 2 and 11 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
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debts owing to 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 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.
4. 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.
5. 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 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 1 to 3 combined to
deny his title to Items 2 and 11, 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
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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
decided.
6. The contention on behalf of the appellants is that while in the case of an adult coparcener a
clear and 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 he 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.
7. The question thus raised is one of considerable importance, on which there has been
divergence of judicial opinion. While the decisions in Chelimi Chetty v. Subbamma [(1917) ILR
41 Mad 442], Lalta Prasad v. Sri MahadeojiBirajman Temple [(1920) ILR 42 All 461 ]and Hari
Singh v. Pritam Singh [AIR 1936 Lah 504], 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 v. Nagarathnamma[(1933) ILR 57] Mad
95, Ramsing v. Fakira, [ILR (1939) Bom 256] and Mandliprasad v. Ramcharanlal [ILR (1947)
Nag 848], lay down that when such a suit is decreed, the severance in status relates back to the
date of the institution of the suit. While Chelimi Chetty v. Subbammadecides that when a minor
on whose behalf a suit is filed dies before hearing, the action abates, it was held in Rangasayi v.
Nagarathnamma and Mandliprasadv. Ramcharanlal 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
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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.
8. 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 v. Sadashiv Dhundiraj [(1916) LR 43 IA 151], wherein it was held, on a review of the
original texts and adopting the observation to that effect in Suraj Narain v. IkbalNarain [(1912)
LR 40 IA 40, 45] 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 and unambiguously, that the filing of
a suit for partition is a clear expression of such an intention, and that, in consequence, 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 v. Prabhu Lal [(1917) LR 44 IA
159], 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 a consequential
judgment or not.”
9. 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
v. Nagarathnamma. The course of the law may be said, thus far, to have had smooth run. But
then came the decision in Girja Bai v. Sadashiv Dhundiraj which finally established that a
division in status takes place when there is an unambiguous declaration by a coparcener of his
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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 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 spoilation 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 he would have died an undivided coparcener of his family
and his heirs could not continue the action.
10. In Chelimi Chetty v. Subbamma 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 joint or whether he shall ask for a
division. In the case of an adult he has not got to give any reasons why he 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 v. Sri MahadeojiBirajman Temple
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
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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.”
11. In Hari Singh v. Pritam Singh, a suit for partition instituted on behalf of a minor was
decreed, the Court found 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 v. Subbamma and Lalta Prasad v. Sri MahadeojiBirajman Temple 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 v. Dadabhai, [AIR (1935) Bom 54], Divatia, J.
quoted the decision in Chelimi Chetty v. Subbamma with approval, but as pointed out in
Ramsing v. Fakira and by the learned Judge himself in Bammangouda v. Shankargouda [AIR
1944 Bom 67], the point now under consideration did not really arise for decision in that case,
and the 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.
12. Now, the ratio of the decision in Chelimi Chetty v. Subbamma – and it is this decision
that was followed in LaltaPrasadcase,Hari Singh v. Pritam Singh and Chhotabhai v. Dadabhai
– 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 an 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 an 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 on 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 is binding on him. And even
when the partition is set aside on the ground than 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 v. Khalak Singh [(1903) LR 30 IA
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165] 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.
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 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 was the view taken in a Full
Bench decision of the Madras High Court in Rangasayi v. Nagarathnamma, 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 v. FakiraandMandliprasad v. Ramcharanlal, 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 parenspartriae 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 [Vol. XXI, p. 216, para 478], it is stated as follows:
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“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.”
It is in the exercise of this jurisdiction that Courts require to be satisfied that the next friend of a
minor has while 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.
16. All the contentions urged in support of the appeal have failed, and the appeal is
accordingly dismissed with costs.
17. The amounts paid by the appellants to the respondents in pursuance of the order of this
Court dated 7th March 1958 will be taken into account in adjusting the rights of the parties under
this decree.
