9911796707
TMI Blog1958 (9) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... current 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 (4), wherein it was held, on a review of the original texts and adopting the observation to that effect in Suraj Narain v. 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) (1917) I.L.R. 41 Mad. 442. (2) (1933) I.L.R. 57 Mad. 95. (3) I.L.R. [1947] Nag. 848. (4) (1916) L.R. 43 I.A. 151. (5) (1912) L.R. 40 I.A. 40,45. there is a severance in status when the action for partition is filed. Following this view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 (4) Divatia J. quoted the decision in Chelimi Chetty v. Subbamma (2) with approval, but as pointed out in Ramsing v. Fakira (5) and by the learned judge himself in Bammangouda v. Shankargouda (6), the point now under consideration did not really arise for decision in that case, and the (1) (1920) I.L.R. 42 All. 461. (2) (1917) I.L.R. 41 Mad. 442. (3) A.I.R. 1936 Lah. 504. (4) A.I.R. 1935 Bom. 54. (5) I.L.R. [1939] Bom. 256. (6) A.I.R. 1944 Bom. 67. 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 v. Subbamma (1)-and it is this decision that was followed in Lalta Prasad's Case (2 ), Hari Singh v. Pritam Singh (3) and Chhotabhai v. 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, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) (1933) I.T.R. 57 Mad. 95. (2) I.L.R. [1939] Bom. 256. (3) I.L.R. [1947] Nag. 848. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
