y

•

S.C.R. SUPREME COURT REPORTS

KAKUM~NU PEDA SUBBAYYA AND

ANOTHHR

v.

1249

KAKUMANU AKKAMMA AND ANOTHER

. •

(VENKATARAMA AIYAR, GAJENDRAGADKAR and

A. K .. SARKAR JJ.)

Hindu Law-Partition-Suit for partition on behalf of minor

-Severance of joint status-Death of minor pending

suit-Abate­

ment-Right

of legal representative to continue suit.

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 representa­

tive was allowed to continue the suit as the second plaintiff, and

th~ 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 wheu 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 behaJf 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 insti­

tuted.

Rangasayi v. Nagarathnamma, (1933) I. L. R. 57 Mad. 95,

Ramsingh v.Fakira, I. L. R. [1939] Born. 256 and Mandliprasad

v. Ramcharan/al, I.L.R. [1947] Nag. 848, 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.

Helg, 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. • •

CIVIL APPELLATE JURISDICTION: Civil Appeal No.

326 of 1955. '

•

September 4.

•

Ped<1;icbb11;ya

v.

A k/<1Htl1lll1

V n1/:alarao1a

Ai)·ar _f.

•

•

1250 SUPREME COURT REPORTS [1959)

Appeal by special leil\'e from the• judgment and

decree dated April IO, i95:1, of the :lladras High Court

in Second Appeal No. 18lii of 1949, arising out of the

judgmeut and decree dated ,January 28, llJ49, of the

Court of Subordinate .Juuge, Bapatla, in A. S. Xo. 188

of 1g47, against the judgment and decree •dated

December 23, llJ46, of the District :llunsif, Ongole, iu

0. S. Ko. 139 of 1946.

ill. C. Setali-ad, Attorney-General for India and

R. Grrnapathy Aiyar, for the appellants.

A. V. Visu:anatha Sastri, M. R. Rangaswanii Aiyan­

gar, 1'. S. Venkatararnan and K. R. Clwu.dhury, for the

respondents.

1958.

September 4. The .Judgment of the Co11rt.

was delivered by

VF.::\KA'l'ARA~IA AIYAR J.-;A'his appeal ari.qcs out

of a suit for partition of joint family properties irn,ti­

tuted on April 2, 1942, in the Court. of the District

l\[unsif, Ongole, on behalf of one Kakum~nu Haman11a,

a minor of the age of about 2t years by his maternal •

grandfather, Rangayya, as his next friend. The first

defendant is his father .• The second and third <lefo11-

dants arc the sons of the tirst clefenclant bv his cleceas­

ed first wif<;. 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 defen­

dant bv the fourth defendant.

Ln tLe plaint., three grouncb were put fonrnrd as to

1 why the minor plaintiff should have partiti<in l (1) It

was said th:tt the mother of the plaintiff was ill-treat­

ed, ancl there was neglect to maintain her n.nd hei·

children. Both the District lllunsif and the Subordi-

1uttB ,Judge on appeal, held that this had not been

established, and no further notice need be taken of it.

(2) It wits then said that there had been a sale of the

family properties to one Akkul Venkatasubba. RL><l<li

for Hs. 2,300, that there was no necessity for that

sale, ancl tbat its object was only to injure the plaintiff.

That sale is dated )fay 9, 1939. (3) Lastly, it w1~s

• alleged that item 2 had been purchased Oil June 1,

. 1938, and item B on J u~e 14, 1939, witH.~ joint family

•

•

'·

•

•

S.C.R. SUPREME COURT REPORTS 1251

funds, but tha! 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.

Iu

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. Some-

;. time in January/ 1943, the minor plaintiff died, and

his mother who was the fourth defendant was record­

e<J 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 re-hearing,

it was

proved

that

tJ:ie first plaintiff was born on December

26, 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 11

m 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

i 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

m~ed 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 affirm­

ed the findings of the District Munsif that items 2

and lf belonged to the joint family, and that there

were no debts owing by 't.

But he also agreed with S him~hat as the sale and purchases i,n question were

prior to the birth

of the minor plaintiff, the suit

tor

•

159

•

•

Pedasubbayya

v.

Akka111ma

Venkatarama

Aiyar ].

•

•

1252 SUPREME COURT REPORTS ll959]

part.it.ion based thereon was not mafntainable. He

I'td•subbayya accordingly dismissed tile appeal. The second plaintiff

took the matter in second 11 ppenl to the High Court of

l\Iadras, and tlmt was heard by Satyanaraya11a Rao J.

who held that as the defendants had falsely claimed

Venkat<nama that i'lems 2 and 11 were the separate propert1es of

V,

Akkamma

.ii,rnr

1

· the second and third dcfr.ndants, 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 lea

Ye

•

b granted by this Court under Art. 136.t

The learned Att-0rney-General who.appeared fort he

appellants ad,·irnced two contentions in support of the

appeal: (I)

that there

was a concurrent finding !iy

both the courts below that the suit was not instituted

for the benefit of the minor, ancl that the High Court

had no power to reverse it in second appeal; and

(2) that, in 1iny event, as tho minor plaintiff had died

before the suit was heard and before the court could

decide whether the institution

of the suit

was for Ii.is

benefit, the action abated and could not he continued

by his mot.her as his leg'\! representative.

On the first question, the contention of the appe1-

. I hnts is that it is a pure question of fact whetherfthe

institution tJf 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. Hut it must he obsen·ed that the finding

of the Subordinate Judge was only that as the im­

pugned sale and purchases were made b<•forc the

minor plaintiff was horn, no cause of action for parti­

tion 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 benefjt that

8 there should bo a partition. It/is no doubt true that

as the plaintiff was not born on the date of those

transactions, tht. defendants could not ha,·e entered

into them with a view to ii1jure him, though even as

"to this it sh~uld . be noted that in 111ay and .June,

•

•

•

•

..

•

S.C.R. SUPREME COURT REPORTS 1253

1939

when

the

1

transactions were concluded, the first

plaintiff was in the womb, ~d the first defendant

admits knowledge

of this, in his evidence. But as­

suming

that there was no intention to defeat the

rights of the first plaintiff

at the time when the trans-

·

actions in question were entered into, that dc1es not

conclude the matter. The real point for decision is

whether the defendants were acting adversely to the

Pedasubbrtyya

v.

Akkamnta

Ve11katara1na

q 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 adduc­

ed evidence in support of their contention

that they

were the separate properties of defendants 2 and 3:

Jiiven in the €ourt of Appeal, the defendants persisted

in pressing this claim, and further maintained

that the

joint family

had debts, and both the courts

belowf had /O

concurrently held against th:im 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

wouid be benefi-

cial 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 snit 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 ,pontention on behalf of the appella1its is that

while in the case of an adult coparcener a clear ancI

. .

•

•

Aiyar ].

•

I't:dfl,Clff;fJaJ)'tl

v.

;Jkka111Jna

Ve11kata,·am!J

AiJ•or J.

•

•

•

1254 Slll'RE:11E COURT REPORTS [ 1!!59]

111Htmbiguous exprcs~ion on his p1trt of a'1 intention to

bcrome divided will han1 t.hc dfoct of bringing about a

division in stat us an<l the filing of a suit for partition

wonlcl amount to such tin expression, that rult> can

ha Ye no application in the case of a minor, as under

the la he is incapttbleofa volition of his own. ·11 i8

~once<led by the appellants that a suit for partition

could be entertained on behalf of 11 minor plaintiff, and

decreed if the court decides that il is in the interest~ of

the minor. But it is said that in such a case, the court

exercises on behalf of the minor a Yo]ition of which he

is incapable, that it is not until that volition is exercis­

ed by the court that there ean be a division in status,

and that, therefore, when a minor plaintiff clies before

the court adjudicates on the question of benefit to hill'I,

he dies an undivided coparcc·ner and his interest.

survi\'eH

t<J

the other coparceners and does not dcvoln~

on his heirs bv inheritance. The contention of the

respondents, o~ the other hand, is that a suit for part.i.

tion instituted on behalf of a minor co1ml'Cc>1wr stands

on the same footing r.s a similar suiL filed by an adult

copnrcener, with this difference that if the snit is held

hv the court not to have been instituted for the benefit.

oi· the minor it is liable to

0

be dismissed, and no divi8io1i

in

status can

be held t-0 result from such an action. l n

other words; it is argued that a suit for partition on

bohalf of <t minor effects a se,·erance in status from the

date of the suit, conditional on the court holding that

its institution is for t.hc benefit of the minor.

The question thus raised is one of con.sidera.blc

importance, on which there has been divergence of

judicial opinion. While the decisions in Chelimi.Chr.tty

v. Snbbamma (' ), Lalta Prasad ,., Sri .il1ahadeoji Biraj­

man Tcm.ple (') and Hari Singh v. Pritam Singh('),

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 ~nefit

and passes a decree, the decisions in Rangasayi v.

Nagarathnamma ('), Ramsing v. Fakira Cl and ilfandli­

pr1JJJa.d v. Rl'lmcharanlal ("), lay down that when such a

•

•

i,1) (1917) I.L.R. 41 ~fad. 442 .

13) A.I.R. 1936 Lah. 504.

(5) I.LR. (1939] tlom. 256.

(2) (1<J20) 1-L.H.. 42 All• 4fn.

(4) (1933) I.LR 57 'lad. 95.

(6) l.L.R. [1947) Nag. 848 .

•

•

j

•

S.C.R. SUPREME COURT REPORTS 1255

• suit is decreed, the severance in status relates back to

the date of the institution of tli.e suit. While Chelimi

Chatty v. 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 v.

Nag,arath­

namnia (') and Mandliprasad v. Ramcharanlal(') that

such a suit does not abate by reason of the death of

the minor befoi;e trial, and that it is open to his legal

represei1tatives 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

v~ws 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. Jaw, 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 111aintained out of those prnperties suitably to the

status of the family so long as the family is joint and

to have a partition

and separate

posse~sion 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

finalJ.y settled by the decision of the Privy Council

in

Girja Bai v.

Sadashiv Dhundiraj ('), wherein it was

held, on a review

of the original texts and adopting

the observation to

that effect in Suraj Narain v. Iqbal

Narain('), 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 clt'ar expres­

sion of such an intention, and that, 1n consequen1Je,

(1) (191)) LL.R 41 Mad. 442. (2) (1933) I.L.R 57 Mad. 95·

(3) LLR [1947] Nag. 848. (4) (1916) LR.i3 I.A. 151.

(5) (1912) L.R. 4a I.A. 40, 45.

•

•

Pedasubbayya

v.

Akkain111a

Venkatarama

Aiyar j.

•

195~

"·

Ft11kat11ra111a

Aiy"'" ].

•

•

•

1256 SUPREME COURT REPORTS [1959]

thorc is a ~e,·erance in Rtatus '"hfln the act.ion for

p1trtition iH filed. Follo~ing this view to its logical

conclusion,

it

was held by the Privy Council in Kawai

Nain v. Prabhu Lal (

1

), that C\•en if such a suit were

to be pismisscd, that would not affect the division in

status which must be held to havo taken place, ''·hen

the action was instituted. Viscount Haldane observed :

"A decreo may be necessary for \'orking out the

result of the severance and for allotting dofinite shares,

bnt the status of the plaintiff as separate in estate i8

brought about by his assertion of his right to separat-0,

whether he obtains a eonsequent.ia.l judgment or not."

The law being thus settled as regards copareeners

who are .mi juris, the question is whether it operates

differcnt.ly when the eoparcencr who institutes the suit

for p1trtition is a minor acting through his next friond.

~ow, the Hindu law makes no di;tinction between a

major coparcencr and a minor coparcencr, so far as

their rights to joint properties are concerned. A minor

is, equally with a major, entitled to be sttitably main.

tained out of the family properties, and at partitioi1,

his rights are precisely thoHe of a major. Consistently

with this position, it lrn.s,long been srttlcd thnt a suit

for pnrtition on behalf of a minor cop:i.rccner is main-

1 ftina.ble in the same manner as one filed bv an adult

coparcencr, 'with this difference that when tl;c plaintiff

is a minor the court has to be satisfied that the action

has been instituted for his benefit. Yidc the authorities

cited in Rangasayi v. Nartarathnainma (')at p. 137.

The course of the law may be said, thus far, to havo

had ~mouth run. But then came tho decision in Girja.

Bai v. Sadashiv Dhundiraj (') which finally establish.

ed that a division in status takes ph;ce when there is

an un<im higuous declaration hy 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 lji.r this

principle could he itpplied, when the suit for partition

was institt!ted not by a major but by a minor acting

thl'ough his next friend. The view was expressed that

{1) (1917f I..R. HI.A. 159. {>) {1933) l.L.R. 57 ~la.\, "5

<3) {1916) I..ll. 13 I.A. 151

•

•

•

• •

S.C.R. SUPREME COURT REPORTS 1257

as the minor

1

had, under the law, no volition of his

own,

the rule .in question

had no application to him.

lt 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

lalid down in a series of decisions and ml:!st, 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 he would have died an undivided coparcener of

hi$ family and his heirs could not continue the

action.

In Chelimi Chetty v. Subba1nma (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 contViued by his legal representatives. It was

h~ld 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 justifi­

cation for the court decreeing partition, therefore

at

this stage'we must proceed on the basis that there was

a good pause 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

exer­

cise 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

i1' is the exerci.se

of the option which the law lodges in a member of the

joint fam!ly to say whether he shall continue to remain '·

. \1) (1917) J.L.R 41 Mad. 442. • •

•

Pedasubbayya

v.

Akkan1ma

Venkatarama

Aiyar ].

•

•

I

1

ed,1sulii-1)'ya

v.

V enlt.1/arrimt1

Ai)'(IY j.

•

•

•

•

1258 St:PRE:IIE COURT REPORTS [1959]

joint or whether he 8hall ask for a dhision. In the

case of an adult he has i10t got to gi\'C any reasons why

he asks for partition bu't h<tS simply to say that he

wants pai·tition, and the comL is hound to give him a

decree. In the ease of a minor t.he law gi\•cs t.he

court.'thc power to say whet.her there should• lw a

diYision or not, and we think that. it will lead to con­

sidernblc complications and difficulties if wc are to say

that other persons also have got the r! iscretion to create

a division in the family, purporting to act on behalf of

a minor."

This deeision was cited with approva.l in Lalla Prasad

1•. Sri Mahadeoji Birajman Temple('), wherein it \'a8

ohHen·ecl:

" The effect, therefore, we think, of an act.jµn

brought by a minor through his next friend is not to

create any alt.erntion of status of the family, because

a minor cannot demand as of right a separation ; it is

only granted in the <liscret.ion of t.he eourt when, in

the cii'cumstances, the action appei\l'S to ho for

the benefit of the minor. Sec Chelimi Chetty 'v, •

Subbamina (')."

In Jlari Singh v. Pritam Singii ('), a suit for parti­

tion instituted on behalt' of a minor W<\H decreed, the

court finding that it was for the benefitof the minor.

The qnestfon then aro8c a> to the period for which the

karta coulcl he made liable to account.. It was hdd,

following the <lecisionA in Cheli mi Chetly v. Sub­

bamma (')

all<! Lali<i Prasad

v. Sri Mahadeoji

Bimjman 'l'emple ('), that as the severance in status

t<iok place only on tho date of the dc<:isioif and not

when the ~uit W<>S ins ti tu tod, the liability to acconnt

arose onlv from the date of the decree ai{d not from

t.he date" of t.he snit. It may be mentioned that in

Chhotabhai v. Dadablwi (') Divat.ia ,J. quoted the

deciHion in Cheli mi Ch~lty v. Subbmnma (')with appro­

\·al, bnt :t:i pointed out. in Ramsing v. Pakira (") and

U,\' the learned judge him.-<elf in Bamnumyrlwln v.

Shankargowfa ("), t.he point now under comideration

did not really• arise for decision in that case, and tho

(1) {19io) l.L.lt .f2 AIL 461. (2) {1917) LL.H.11 fo.taci. 44.?. .

{3) A.I.H. 1936 Lah. 504. (.1i A.l.R. t935 Hom-! 54.

(5) l.L.H. [19l9J Jlom. 256. (6) A.l.R '9H Som. 67 .

•

•

.

•

'/

•

S.C.R. SUPREME COURT REPORTS 1259

'

observations Jere 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. NO'W, the ratio of the decision in Chelimi Ch'etty v.

Subbamma (1 )-and it is this decision that was followed

in

Lalta Prasad's

Case('), 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

parti­

tion is beneficial to the minor, it does not itself bring

al.out 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

~o 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 be­

tween 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

coparcE:ners 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

;artition 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

hae been ,prejudi­

cial to him ; but if that is not established, the partition ,

(1) (191j) I.L.R. 41 ~lad. 442. (2) (1920) I.L.R. 42 Alt 461.

(3)

A.I.R. 1936 Lah.

504, , (4) A.I.R'. 193.l'Bom . .54·

160

•

Pedasubbayya

v.

Akka1nma

Venkutararna

Aiyar ].

•

•

Pelasubbayya

v.

Ahk<H11nlU

Venkalarama

Aiyar ].

•

•

1260 SUPREME COURT REPORTS [1959)

is binding on him. Vide Balkishen Das t-. Ram Narain

Sahu ('). And even wQen 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

proper­

ties. 'It is immaterial that the minor was represented.

in the transaction not by a legal guarc.l.ian but by a

relation.

It is true,

as held in Gluirib-Ul-Lah v. Khalak

Singh(') that no guardian can be appointed with

reference t-0 the coparcemtry properties of a minor

member in a joint family, beeause 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 J>f

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 tho authorities, a partition

entered into on his behalf by a person other than

his father or mother will be valid, pro,·idcd that

person acts in the interests of and for the benefit of t11e

minor.

If; under the law, it is, competent to a person other

than the father or mother of a minor to aet on Iris

behalf, <ind enter int-0 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 lm served by a

cJ.ivision and that the adult coparcener:i are not willing

to effect a partition, to file a suit for that purpo8e on

behalf of tho minor, and why if the court firnis that the

action is beneficial to

the minor, the

institutio11 of tlw

suit should not be held to be a proper declaration on

behalf of the minor t<> become divided so as to cause

a severance in status? In our juc.l.gmcnt, when the law

permits a person interested in a minor to act on his

behalf,

any declaration

t-0 become divided made hy

him on behalf of the minor must be held tc> re~ult in

severance in status, subject only to the court cJ.cciding

whether if is i>encficial to the minor; and a suit

, instituted on his behalf if found to be beneficial, must

bo helcJ. to brini: about a divisiori in statt1s. That

(1) (1903) L.R. 30 I.A. 139. (z) (1903) L.R. 30 I.A. 165 .

•

•

..

•

• •

S.C.R. SUPREME,COURT REPORTS 1261

wa.s the view• taken in a Full· Bench decision of

the Madras High Court in. Rangasayi v. Naga­

rathnamma (

1

), wherein Ramesam J. stated the posi­

tion 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

condi­

tional 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. Fakira (')

and lllandliprasad v. Ramcharanlal ('), and we agree

w.ith 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 fdr 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 1'efore 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, p.tra. 478, it is stated as follows:

"Jnfants 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 indepen­

dent of the question whether the iofant has a,ny

property or not."

(t) (193j) I.L.R. 57~!ad. 95. (2) I.L.R. [1939] Born. 256. •

(3) LL.R. [194.7.J Nag. 848'.

•

Pedasubbayya

v.

Akkamma

V enkatarama

Aiyar ].

•

Pulasitbbayya

v.

Akkamma

v tnkaftJrtHIUI

Aiyrtr }.

•

1262 SUPRE:'IIE COURT REPORTS [1959]

It is in the exercise of this jurisdicti~ that courts

require to be satisfied th.-it tho next friend of a minor

has in instituting a suit for partition acted in his

interest. When, therefore, the court decides that t.he

suit has been instituted for the benefit of the miuor

and d~rccR partition, it docs so not by virtue of• any

rule, special or peculiar t-0 Hin du law hut in the

exorcise

of

a jurisdiction which is inherent in it and

which extends over all minors. The true cflcct. 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 <lid not possess bPfore 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 seYerance in status i8 the action ~f

the next friend in instituting the suit, the decree of the

court merely rendering

it

effective by deciding that

what the next frir.nd has done is for the benefit of the

minor.

It remains to consider one other arg111u.ent advanc­

ed on behalf of the appellants. It was urged that tll.e

cause of action for a suit for partition by a minor mis

one personal to him, and that on his death before

hearing, the suit must dbate on the principle of tho

maxim, actio personalis moritur cum pr.rsrma. But that

maxim has ~pplication 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 tho view taken in

Ranyasayi v. Nagarathnamma (') at pp. 137-138 and

in Mandl1'.pra.~ad v. Ramcharanlal (') at p. 871, and we

are in agr1,'i)ment with it. .

All the contentions urged in support of the appeal

have failed,

and the

appeal is accordingly dismiHsed

with costs.

Tho amounts paid by the appellants to the respon-

• dents in pursuance of the order of this Court elated

l\Iarch 7, 1958, will be taken into account in adjusting

the rights

of the parties under this decree . •

Appeal dismi.~sed.

• •

{1) {1933) l.L.lj.. 57 )lad. 95 . (2) I.L.R. [1947] Nag. 848.

•

•

•

•

..